By Richard Menta- 1/24/2000
Wasn't it just last week that we were complementing MP3.com on coming up with a clever way to use copyright music on the net legally? Next thing we know, the Recording Industry Association of America (RIAA) sues them for copyright infringement.
It is becoming surreal these legal actions by the record industry group. Not that they don't have a right to protect the music they represent from copyright infringment. The problem with these lawsuits seems to stem from issues beyond the protecting of artists rights and more in tune with protecting the RIAA's power over the rapid changes caused by a burgeoning online music industry.
For those unfamiliar with MP3.com noteworthy premise, let us explain.
Years ago, long before Digital Music or CD's were an element of the music market, the record and film industries were locked in several copyright battles regarding the recent technologies of cassette and video taping. Because people with such recording devices could make personal (even numerous) copies of the music and movies, those devices, the content industry claimed, violated copyright law.
From those lawsuits came a legal precedent called Time Shifting.
The judges found the great majority of consumers didn't use these devices to steal content, they used them as tools of convenience. Time shifting, the court ruled, is a concept where the consumer transfers music from one medium to another for the convenience of playing it at a later time or another place. This was ruled a fair and legal use.
Granted, this precedent did not stop a dissagreable music industry from plastering the sleeves of vinyl albums with "Home Taping is KILLING the Music Industry". It didn't. Since this landmark ruling twenty years ago, the recording industry thrived, not died.
MP3.com's new service, My.MP3.com, is a brilliant application of the Time Shifting concept, leveraging the power of the net in a very forward-thinking manner.
Using a tool called Beam-It (downloadable from the site), users take their CD's that they have already paid for - the key here is paid for - and upload them to a private account on My.MP3.com.
The account becomes a personal storage bin that allows you to play your music from anywhere you have web access. Think of it as a giant CD caddy you DON"T have to carry around with you. In theory, you can load your entire CD collection and play your tunes from your computer at work, your cell phone, or your PDA. Another service called Instant Listening Service, allows you to add new music you purchase - key word again is purchase - from one of several dealers automatically and instantly. You don't even have to wait for the CD to be delivered.
This is what MP3.com is betting on, an income model that takes advantage of the user's right to time shift.
This is what we wrote in our story on My.MP3.com last week.
"Think of all the people out there who drag their CD's to work so they can listen to music while they toil. Wouldn't it be great if these people could leave their CD's at home while they listen to the same music off of a web account? Same music, different delivery, big convenience, and the RIAA is not sending you letters claiming you owe them performance fees (as they are trying to do with straight-forward Net radio stations)".
Our comments on the RIAA were obviously pre-mature.
Cary Sherman, senior executive vice president and general counsel of the RIAA, said in a statement, "This is a blatant infringement of rights, upsetting not only to record labels, but also large numbers of artists, retailers and technology companies who have business agreements with copyright owners".
We are a tad confused how this can be true? The music, theoretically, is already paid for as are the pre-described rights endowed through the legal precept of Time Shifting. What's the problem?
But then, The RIAA's motives tend to stem less from their being the Robin Hood of the downtrodded and exploited artist and more with a series of not well thought-out attempts to make its existance a significant element of the digital music industry.
To date, they have sued: Diamond (lost), Lycos (lost), and Napster (still pending, but does not look strong). As MP3.com's Eric Schierer pointed out in another of his perceptive articles:
"... hastily conceived lawsuits have a way of backfiring by creating precedents with undesired consequences for the old content industry. In ruling on the RIAA-Diamond lawsuit, the court judgment severely weakened the American Home Recording Act when it ruled that home computers are not music-recording devices".
Which brings us to an interesting point. How many people can the RIAA sue? We know they have fairly deep pockets, but their track record with litigation isn't paying them any dividends. Not that we feel sorry for them, they have tended to use the courts in a bullying manner, even in cases where they were fully justified and correct in their standing. We just feel they would have better spent this money avoiding an advisarial relationship with the Web music industry.
A lot of this has to do with foresight. If there were any prescient individuals at the RIAA who saw the potential of the MP3 format before last year, they were obviously ignored. The actions of the RIAA are one of an old guard group who overlooked the early stirrings of the online music industry until it caught them with their pants down. The results were a panicked attempt to catch up. Time will tell how this all will play out, but one has to wonder if the RIAA's actions will only serve to distance themselves from the Internet music industry and, quite possibly, the music industry as a whole.
My.MP3.com is a free service for now, but eventually there will be a fee associated with it. If it works, their new income model has the potential to be repeated by the Amazon's and CD Now's who presently sell a lot of music. In other words, it may become yet another significant evolution in the world of Internet music, the real issue the RIAA fears most.
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