I. Introduction

II. Who are the players in this debate?

III. What is the Argument About?

IV. When in the process is the problem?

V. So Where is the infringement?

VI. Why is this not a Clear-cut case of Copyright Violation?

VII. Conclusion

Endnotes

Forget "I want my MTV," "I want my MP3" might well be today’s rallying cry.

MP3 is the new compression technology that makes transmitting high quality music over the Internet practical. Its use has exploded over the past few years. In fact, "MP3" is now the most searched term on the net--surpassing even "sex."¹

So what is this innovation that has aroused more interest than pornography? Most precisely, the term "Moving Picture Experts Group-1 Audio Layer 3," or in short, "MP3,"² refers to a compression technology that reduces digital files to about a tenth of their normal size. Little enough of the quality is lost that the average listener doesn’t notice or care.³ MP3 accomplishes this by using a perceptual codec that operates on the principle that "there's little point in storing information that can't be perceived by humans anyway." ⁴ A "codec" is simply a process for compressing and decompressing information." ⁵

This particular codec works so well that a song that would take up 50 megabytes of space on a CD would only take up 5 megabytes as an MP3 file. While very few users would ever bother to download a 50 megabyte song, a great many would spend a few minutes downloading a 5 megabyte file, especially with the increasing availability of high speed Internet connections.⁶

In a more colloquial sense, an MP3 is simply a digital music file found either on computers, portable MP3 players, or on the Internet. It’s like a CD in cyberspace. Recently, however, MP3 files have escaped the confines of the computer. A person can now connect his or her computer to his stereo system and take advantage of high quality speaker output. One can now play MP3s on some hand-held computers and on portable walkman-like devices such as the Diamond Rio. Car adapter kits are now available, so an MP3 devotee can take his or her music and hit the road. (Scott hacker, MP3: the Definitive Guide." ⁷ But the vast majority of MP3 files are still found on the computer and on the Internet.

Most people listen to MP3 files on computers, with the help of "jukebox" software.⁸ Most jukebox programs, at least the basic versions of the program, are still freeware. Jukebox software, as the name suggests, can collect your MP3 files into a virtual library, and allow you to create collections of songs, your own playlist.⁹

MP3.com, one of the major MP3 websites, provides a prominent link to the MusicMatch Jukebox program.¹⁰ The basic program is free; an advanced version of the program is available for a yearly subscription cost.

The Internet, MP3 and other rapidly changing technologies have forced the music industry to rethink many aspects of its operation. For example, Billboard, the trade magazine that publishes lists of the top songs, albums, and artists in many categories, recently added a "Top Internet Albums" list.¹¹ An estimated 30,000 digital MP3 playback devices were sold in 1998, and it is estimated that 500,000 were sold in 1999.¹² And thousands of MP3 websites—legal, marginally legal and illegal—have appeared in the past couple years.¹³

Understandably, the Recording Industry Association of America (RIAA) is concerned with the emergence of the MP3 format and its enormous and exploding popularity. The RIAA has sent hundreds of cease and desist letters to MP3 sites, only to have more pop up, hydra-like, in their stead.¹⁴

The RIAA has been watching the development of MP3 popularity and prevalence with a panicked eye, and has already sued several major players such as Diamond Multimedia, Napster.com, and MP3.com for copyright infringement. Diamond Multimedia has already won its case; its Diamond Rio (a portable MP3 player) was held not to be a "digital audio recording device" under the terms of the Digital Millenium Copyright Act.¹⁵ Other cases, such as RIAA v. MP3.com, have yet to be decided.

This paper focuses on the RIAA v. MP3.com lawsuit and surrounding legal issues. Those issues raise just a few basic questions. Think back to grammar school, and the "5 Ws": Who, what, when, where, and why?

Who are the players in this drama? What is this debate about? When in the process is the problem? Where is the music? In other words, where is each copy physically located, who is using which copy, and does that make a difference? Why isn’t this a no-brainer?

These questions, as applied to the specific case of RIAA v. MP3.com, illustrate a much broader problem arising in many areas of cyberspace law. Current legislation and case law often simply don’t seem to fit when applied to Internet issues. Electronic and computer innovations burst forth with a speed and unpredictability that alarm organizations like the RIAA; the current law can’t quite seem to contain them or catch up. But should we even be trying to force cyberspace developments into the current copyright regime, or is there a better model to follow? This paper presents the merits and drawbacks of three possible models for copyright protection: traditional legislation and case law, technological control, and market control.

Federal copyright law rests on a constitutional foundation. Article 1, section 8, clause 8 of the U.S. Constitution states that "Congress shall have the power...To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Most recently, Congress has codified exactly how it exercises this power in the Copyright act of 1976.¹⁶

The Copyright act specifically lists several types of protected works, including "musical works"¹⁷ and "sound recordings."^{18, 19} Section 102 also protects "literary works," the meaning of which now includes all forms of digitized expression, including text, sounds, images, video, and data.²⁰ MP3s fall squarely within this language.

The Copyright law affords to the categories of protected works several basic rights, including the right to copy, to make derivative works, to distribute copies, and to perform and display the copyrighted work.²¹ The right most relevant to the MP3.com case as pleaded by the RIAA grants copyright owners the exclusive right to reproduce the copyrighted work.²²

Limitations on the basic copyright rights are set out in §§ 107-120, but the one most important to our case is the fair use limitation at §107. A finding of fair use requires that the court make a four step analysis. In this analysis the court should consider: the purpose and character of the use, the nature of the copyrighted work, the amount of the work used, and the effect on the work’s market.²³

The four factors are not given equal weight. Decisions are made on a case by case basis.²⁴ The first and the fourth are generally the most important and most heavily weighted in any fair use analysis.²⁵

Commercial use of a copyrighted work weighs heavily against a fair use claim because a "meaningful likelihood of future harm" is presumed.²⁶ However, the general policy behind the fair use exception "permits unauthorized use of copyrighted work in situations where there is high social value to the use."²⁷ The implications of the copyright protections and a fair use analysis will be explored thoroughly later.

Copyright violations are at the heart of the RIAA v. MP3.com debate. Yet many MP3 sites play up their illegality as a selling point. The website www.allmp3s.com proudly boasts that its content is "100% Illegal!!!" It offers links to many free MP3 files hosted on other sites. These MP3 files represent songs from just about every genre and artist, including current top hits. www.mp3.com plays on this cultural phenomenon in a more subtle way. In the opening line of a letter announcing the 3rd annual MP3 Summit, Michael Robertson, the CEO of MP3.com, proudly says, "We welcome the hackers, CEOs, artists, record label executives, lawyers, politicians, and developers who have attended our previous conferences and look forward to meeting a new group of business people, students, and programmers—all of whom gladly share the tag ‘music fan.’"²⁸ The fact that Robertson greeted the "hackers" first is a telling linguistic move. Emphasis is placed on that role, and MP3.com clearly embraces some characters of questionable legality who are involved in the world of MP3s.

It is the ambiguous legality of the technologies and practices surrounding MP3s that has the recording industry in a stir. The law is chasing the technology, and no one yet knows exactly what the outcome will be. The courts are trying to puzzle out the mess of how the current copyright law should apply to new innovations in cyberspace--but that might not be the best solution. In the meantime, however, examining several basic questions may reveal where the courts and the world of online music will soon head. 

In order to understand the debate at hand, one must first know who the parties are.

The Recording Industry Association of America (RIAA) is the main plaintiff in this case. The RIAA is a trade group whose members comprise approximately 90% of the music production companies in the United States.²⁹ The RIAA’s over 500 members produce and/or distribute music in the United States and abroad. Its members include "BMG Entertainment; EMI-Recorded Music; Sony Music Entertainment, Inc.; Universal Music Group; and Warner Music Group, in addition to smaller labels such as Rhino, Tommy Boy, HOLA Records, La Face and Zero House."³⁰ The RIAA lists its mission as "to foster a business and legal climate that supports and promotes our members' creative and financial vitality around the world."³¹ The RIAA was founded in 1952.³²

Joining the RIAA as plaintiffs in the lawsuit are some of its members, including UMG recordings, Sony Music, Warner Brothers Records, Arista Records, Atlantic Recording Corporation, BMG Music, RCA Records, Capitol Records, Electra Entertainment Group, Interscope Records, and Sire Records Group.³³

MP3.com is a corporation incorporated in Delaware, with its principle place of business established in California.³⁴ MP3.com considers itself a "premier Music Service Provider,"³⁵ and is a publicly traded Internet company that provides to its members the ability to listen to any free MP3 files, or files of CD tracks that MP3 has authenticated the user owns a copy of or has bought through one of its affiliates.³⁶

MP3 technology, in and of itself, presents no problems under the current copyright law; indeed, the RIAA says that "RIAA and its members have no objection to the format itself."³⁷ But the recording industry is terrified of the potential for piracy.³⁸ The RIAA’s central problem with MP3.com and other similar companies is the fear that they are making copies and distributing those copies in violation of copyright law.³⁹

MP3.com has bought some 45,000+ CDs and made digital MP3 copies of those CDs on to its own servers.⁴⁰ Since the lawsuit document was drafted, however, MP3.com’s collection has continued to grow; they reportedly have over 80,000 CDs now bought and entered in their digital collection.⁴¹

The my.mp3.com service is particularly hotly contested, and is central to the lawsuit. By becoming a member of my.mp3.com, a user has access to both the Beam-it feature and the Instant-listen feature. By combining these elements with free jukebox player software, mp3.com enables users to listen to any music in his or her home collection from any Internet-connected computer.

The Beam-it software is the software through which MP3.com makes a user’s personal CD collection available online, and accessible from any Internet-connected computer. A user simply sticks a copy of a CD from his or her personal collection into a computer’s CD-ROM drive. By merely pushing a button on the "Beam-it" software, the user allows the software to scan the disk and transmit the information to my.mp3.com. After MP3.com verifies that the user does indeed have in his or her possession a particular CD, that user is granted access to MP3.com’s online copy.⁴² A user must only log in to my.mp3.com with his or her password from any computer with web access in order to listen to any of the music tracks authenticated through the "Beam-it" process. If MP3.com does not yet have a particular disk in its archive, the website prompts the user to enter in the CD title and UPC code. MP3.com will then notify the user when that CD has been added to the available pool.

The Instant-listen technology is also of concern to RIAA. This service offered by MP3.com allows users to have immediate access to CDs they purchase online through any of their affiliate stores.⁴³ The immediate access is, of course, made possible through the fact that MP3.com has already made digital copies of those CDs into their computer database. Again, it is the fact that MP3.com has made those copies that RIAA alleges is in violation of copyright law.

RIAA and its associate plaintiffs are seeking declaratory, injunctive, and monetary relief against MP3.com for what it alleges are acts that infringe its members’ copyrights.⁴⁴

The legal question in this case is not whether MP3.com has made copies, but whether those copies are infringing on the rights the Copyright act of 1976 grants to the RIAA and its members. The distribution right may be implicated, as may the duplication right, as granted by 17. U.S.C. §106. But MP3.com has some interesting defenses and useful case precedent, and experts are falling pretty evenly on both sides of the line. Fair use has been raised as a likely defense, and Professor Lemley believes that "MP3.com service was technologically equivalent to a user's making a copy for personal use--something specifically allowed under the law."⁴⁵ The right for a user to make copies for personal, non-commercial use is granted in Audio Home Recording Act of 1992.⁴⁶

The facts in RIAA v. MP3.com are reminiscent of how the broadcast industry reacted to the advent of the VCR in the early 1980s. In the case of Sony Corp. of America v. Universal City Studios, Inc., owners of copyrights in television programs brought suit against the manufacturer of VCRs, alleging copyright infringement. The facts seemed clear. Copies were being made with the VCRs; indeed, that is precisely what the VCRs were intended to do, at least in part. The court held, however, that the VCR was capable of substantial non-infringing uses, and that since the copyright holders "failed to show that would cause any likelihood of non-minimal harm to the potential market for, or the value of, their copyrighted works" the copyright owners could not stop the manufacture and sale of the devices.⁴⁷ "Any individual may reproduce a copyrighted work for a 'fair use'; the copyright owner does not possess the exclusive right to such a use."⁴⁸

A key point in the court’s analysis centered around the concept of "time shifting." A person using a video tape recorder such as the one Sony manufactured and sold, could tape any program from the television and watch it at a later time, or "time shift."⁴⁹ Even the "unauthorized" time shifting of the copyrighted material was considered fair use, when conducted for personal, non-commercial use.⁵⁰

As in the Sony case, the RIAA is not going after the home user. Rather, they are suing the company that makes the use possible. In the text of the lawsuit filed by RIAA against MP3.com, RIAA repeatedly alleges that MP3.com allows its users to "download" the music copies in question. This is deceptive terminology, however, as the term "download" in common practice means to create an entirely new copy onto one’s own computer or hand-held computer device.⁵¹ No such thing occurs anywhere on the www.mp3.com or my.mp3.com websites. Rather, the copies that MP3.com has made are kept only on MP3.com’s computers, and the members are allowed use of those copies through "streaming."⁵²

The contrast between "downloading" and "streaming" is critical in this digital age. Streaming, unlike downloading, is a process in which "no trace of the clip is left on the consumer's computer."⁵³ If MP3.com were indeed allowing its users to "download" copyrighted musical works for free, and without any license agreement, it would clearly be infringing RIAA’s members’ 17 U.S.C. §106 (1) and (3) exclusive rights to reproduce and to distribute copies or phonorecords of the copyrighted works. Though the RIAA is not suing the millions of home users that MP3.com counts as its members, the RIAA is alleging in its lawsuit the user’s "downloading" of MP3 files as a count of infringement against MP3.com.⁵⁴ Since there is no "downloading" occurring, there can be no infringement based on any such claim.

In Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., Nintendo sought to enjoin Galoob from manufacturing and distributing Game Genie, an electronic device designed to allow home video game users to manipulate the software, circumventing normal game limitations. The user, for example, would be able to skip skill levels, or manipulate the game to give the user unlimited "lives."⁵⁵ Nintendo claimed that Galoob was liable under copyright law because it allowed users to infringe on their copyright by creating a derivative work. The court held that Galoob’s Game Genie device was permissible under the fair use standard.⁵⁶ The court made special note of the fact that it was "the fairness of the family's use of its video game, not some evaluation of the commercial ‘fairness’ of Galoob's product, that must guide the Court's analysis.⁵⁷ Similarly, the court in the RIAA v. MP3.com will need to decide whose use is the infringing use. The music listener and subscriber to my.mp3.com’s use will likely be considered a non-commercial personal use that will weigh heavily toward a finding of fair use under 17. U.S.C. §107, just as a family using the Game Genie was in the Galoob case.

RIAA would likely try to distinguish the Galoob case, based on the fact that in Galoob, infringement was based on the theory that end-users were creating copyright-infringing derivative works.⁵⁸ However, here RIAA is alleging, in part, a more direct claim--that the end users are themselves "downloading" infringing works, creating copies of those works. Even if the courts determined that the definition of "downloading" (which is not defined in the US. Copyright act) did include the "streaming" made available by MP3.com to its users, such use would likely be considered fair use under the same rationale as proclaimed in the Sony and Galoob cases.

The four step fair use analysis of 17 U.S.C. §107 guides courts to consider:

When drafting this legislation, the legislature "amended the first criteria...to state explicitly that this factor includes a consideration of" whether or not the use is a commercial use.⁶² The user is listening for his or her personal enjoyment, a non-commercial use. In addition, however, it is "necessary [to look for] a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists. If the intended use is for commercial gain, that likelihood may be presumed."⁶³ We are here analyzing the use of the copy made by the consumer, the personal home user. That use is clearly not for commercial gain, and therefore the first factor thus cuts toward a finding of fair use.

The court must then look to the nature of the copyrighted work. "In general, fair use is more likely to be found in factual works than in fictional works."⁶⁴ We are here dealing with a creative work, one more similar to a fictional than a factual work. This factor seems to cut against a finding of fair use. However, this factor does not weigh very heavily in comparison to factors one and four.⁶⁵

Third, the court must examine "the amount and substantiality of the portion used in relation to the copyrighted work as a whole."⁶⁶ Here, MP3.com and its users under this analysis have taken the entire song, and sometimes the entire CD (a compilation work). "The copying of an entire work will ordinarily militate against a finding of fair use, though this is not a per se rule."⁶⁷ In fact, the court found that total copying is acceptable if "no practical alternative way to carry out its socially useful purpose."⁶⁸ The court could go either way on this issue. The RIAA will likely argue that there is no socially useful purpose advanced by the copying of the phonorecords copyrighted by its members. MP3.com, conversely, will likely argue that there is a strong socially useful purpose in allowing its members, those who have already bought legitimate copies of the phonorecords in question, to be able to listen to those phonorecords whenever and wherever they want—and in whatever format, even if that means digitally and streamed over the Internet. MP3.com’s President, Michael Robertson says: "We believe that consumers buying a CD get the right to listen to it anytime, anywhere, on any device, without having to pay for that music again."⁶⁹ In any case, this factor, like the second factor, is not weighed heavily in the ultimate decision of whether a use constitutes fair use.⁷⁰

The final factor, the effect of the use upon the potential market for or value of the copyrighted work, is the "single most important element of fair use.⁷⁰ Again, it is the personal home user’s private, non-commercial use of the copy held by MP3.com that is in question. The RIAA in its lawsuit alleges that it has invested a great deal of money and time into the cultivation of many recording artists, and has spent a great deal of money to "manufacture, advertise, promote, sell, and license phonorecords" like the ones that have been copied by MP3.com. It further asserts that the only compensation Plaintiffs receive for such efforts, largely, is realized through the sale of phonorecords and that MP3.com’s actions are whittling away at such profits:

Does the non-commercial home user’s use really have an effect upon the potential market for or value of the copyrighted work? It doesn’t seem likely. MP3.com has taken several steps to ensure that infringing copies are not made.⁷³ Users can only listen to music that MP3.com has verified (through its Beam-it software) that the user legitimately owns. There is always the potential for cheating--borrowing a friend’s CD, for example--but as in the Sony case, the possibility of some illegal use did not weigh heavily enough against the socially acceptable use to prevent a fair use finding. On the whole, the Beam-it software ensures that a legitimate copy of the CD was bought, and proper royalties were paid to the artist and record company.

The Instant-listen feature is even more secure, only granting the user access when he or she has actually bought a CD online; proper royalties have already been paid by the user once. In addition, all user accounts are protected with passwords, and no two users can listen to the same account at the same time.⁷⁴

The user has already bought a copy of the CD. Admittedly, there is widespread piracy of musical recordings on the MP3 format, but this piracy is not at issue in RIAA v. MP3.com. The inability to upload your own MP3 tracks to my.mp3.com and the need for a physical copy of the CD to be able to listen to it online seem to indicate that the potential market and value of the copyright is not harmed in this particular case. The copyright owner already has as much as they ever expected to receive before the advent of MP3 technology. Indeed, they have even more, since MP3.com had to purchase a copy of the CD in order to insert it into its database. Thus, the fourth factor of the fair use test, an important and heavily weighted factor, seems to lean toward a finding of fair use. 

If the user of the my.mp3.com service is considered the user for a fair use analysis, it seems unlikely that a court will rule in favor of RIAA. It is a somewhat trickier question, however, if we consider only the initial copy that MP3.com made when it was creating its database. The RIAA will likely point to Infinity Broadcast Corp. v. Kirkwood to focus the fair use investigation on MP3.com’s use, rather than the home listener’s use. Kirkwood offered a "Dial-Up" service that retransmitted radio broadcasts over the telephone, and argued that its users transform the broadcast by using them for their factual, rather than entertainment, content.⁷⁵ However, the court decided that it was Kirkwood’s own retransmission of the broadcasts, not the acts of the end-users, that was at issue.⁷⁶ It is thus important to consider carefully the copying MP3.com did, in order to determine if it falls under the fair use exception.

The purpose and character of the use fairly clearly seems to be a commercial use for the very first instance when MP3.com copied CDs into its database. MP3.com is a for-profit business, and sells advertising based on the volume of traffic on its webpages. In addition, the use does not seem transformative; it is a wholesale copying of each sound recording in its entirety. This first important factor would seem to weigh heavily against a finding of fair use.

The analysis of factor two, the nature of the copyrighted work, is the same as in the above analysis of the end-user’s use: the original is a fictional or creative work, and thus is less likely to be considered fair use than a factual work. However, this factor is not determinative.
Factor three, like factor two, is precisely the same as the analysis for my.mp3.com users’ fair use analysis. The entire work was taken; this element cuts against a finding of fair use.
Factor four, however, does not seem so obviously to weigh against a finding of fair use. As in the analysis above, the potential market for the copyrighted work does not appear to be affected, nor does the value of the copyrighted work. No sales are lost; MP3.com’s sales are added to the record company’s pot. MP3.com encourages users to buy CDs either in person or online, and then to add them to their online collection. This final, most important factor seems to weigh in favor of a finding of fair use. A court might seize this opportunity to find a fair use exemption for MP3.com’s copying of CDs into its database.

The RIAA will, however, likely raise the Kirkwood case once again. Kirkwood argued that its service was "of substantial benefit to society."⁷⁷ The court rejected that argument. However, MP3.com could distinguish on the facts: the court rejected the argument because in that case, between 75 and 80 percent of the people using Kirkwood’s service could get the information directly, by merely turning on the radio and listening to the original broadcast.⁷⁸ MP3.com could argue that the court, therefore, did not rule that a benefit to society is irrelevant to the analysis. Indeed, if "the secondary use adds value to the original...this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society."⁷⁹ This is true even in some cases where the entire work is taken. Leval gives the example of a literary analysis of a sonnet. In analyzing the poem, the entire work may be quoted, but "if there is strong justification and no adverse market impact, even so extensive a taking could be a fair use."⁸⁰

The congress chose to make a fair use analysis highly fact dependent, and did not provide much guidance as to how to step through the §107 analysis.⁸¹ (H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 65-66 (1976)). The courts have done little to clear the confusion. "Decisions are not governed by consistent principles, but seem rather to result from intuitive reactions to individual fact patterns. Justification is sought in notions of fairness, often more responsive to the concerns of private property than to the objectives of copyright."⁸² The lack of a consistent standard makes it extremely difficult to predict which way the court will fall on a fair use analysis of RIAA v. MP3.com.

Granting the RIAA such authority over how MP3.com and its subscribers may do with their copies once they buy them may be considered to be in conflict with the First Sale Doctrine as embodied in 17 U.S.C. §109. Section 109(a) maintains that any person who has lawfully acquired a legal copy of a phonorecord may dispose of that phonorecord in any way, without the permission of the copyright owner. It is unclear, however, if MP3.com might run afoul of §109(b)(1)(A), which states that an owner of a particular phonorecord may not, for any direct or indirect commercial advantage, "dispose of the possession of that phonorecord…by…lending." It is unclear whether MP3.com would actually be "disposing" of the possession if it were merely allowing users access to its files since it would keep both the physical phonorecord and original file, and whether or not that would be considered "lending."

The recent lawsuit the RIAA brought against Diamond Multimedia Systems, the manufacturer of a portable MP3 player called the Diamond Rio, provides some interesting and relevant case history. The RIAA tried to enjoin Diamond Multimedia from manufacturing and selling their Diamond Rio MP3 player, alleging that the Diamond Rio did not meet the requirements for "digital audio recording devices" under the Audio Home Recording Act (AHRA) of 1992, found at 17 U.S.C. §1001, because the Rio "does not employ a serial Copyright Management System (SCMS)," which acts as a technological tool in monitoring and preventing copyright infringement made possible by digital audio recording devices.⁸³ The court ruled that the Diamond Rio device did not violate the AHRA because it is not a "digital audio recording device" as defined by the act.⁸⁴ The court reasoned that the Rio does not reproduce a digital music recording either directly, or from a transmission,⁸⁵ and thus does not qualify as a digital audio recording device. Indeed, an computer programs were specifically excluded from the definition of digital audio recording device when the legislation was drafted.⁸⁶ Computers were specifically exempted from the act because their primary purpose is not to make digital audio recordings or copies.⁸⁷

Further, the court in RIAA v. Diamond Multimedia, Inc. asserts that the AHRA's main purpose is "the facilitation of personal use."⁸⁸ The court looked to the Sony case, in which the concept of "time shifting" was created and legitimized by the courts, and then in this case took it a step further. "The Rio merely makes copies in order to render portable, or "space-shift," those files that already reside on a user's hard drive."⁸⁹

This line of reasoning is presented by MP3.com as analogous to their situation. MP3.com's services and software merely make it possible for users to space-shift music already in their CD collection. The court in RIAA v. Diamond Multimedia considered whether or not consumers have the right to rip copies from their CD collection onto their computers, then transfer those MP3 files to their portable MP3 players, and concluded that consumers could. The court created the concept of "space shifting," making a rather dramatic analogy to the "time shifting" concept of the Sony case. RIAA v. MP3.com might be viewed as a variation on that theme, the question addressed now being whether or not consumers have the right to "copy shift."⁹⁰

Another analogy might be drawn between MP3.com’s copies and copies allowed in software agreements. These agreements specifically allow the user the right to copy, so long as it is for "backup and archival purposes" as outlined in the copyright statute (17 U.S.C. §117). Subscribers to MP3.com have a right to make copies of their CDs for their own personal use, such as a space-shifting use noted above. The copies MP3.com holds could be considered a user’s backup archival copy.

In the Sony case, the court said that considering the sale of a machine that technically contributed to infringing use as a basis for liability would be "beyond precedent."⁹¹ The court might make a similar analogy to the way that MP3.com makes available copies of musical works. It is not a machine, but a process, a technology in this case, being implemented by a computer. Still, it isn’t entirely inconceivable that the courts might make such an analogy. New technologies emerge so quickly that a traditional copyright analysis often seems woefully inadequate.⁹² Such a stretch may seem unlikely, but the courts are making rather dramatic decisions in the arena of cyberspace law. 

New innovations appear at a remarkably rapid pace, and the "size" of the internet is expanding just as rapidly. An estimated 150 million people around the world were online by the end of 1998, and that number is expected to jump to 320 million by 2001, and 720 million by 2006.⁹³ In this booming cyber-world, it seems that the law simply can't keep up.⁹⁴

Many analysts are looking away from a legislative solution and toward a technological one. "In this new age of electronic music distribution, where can songwriters and producers turn to enforce their IP rights? After RIAA [v. Diamond Multimedia, Inc.], existing IP laws may not provide adequate protection, and artists and producers may have to rely on new technologies, such as the Secure Digital Music Initiative (SDMI) or MPEG-Advanced Audio Coding (a2b) to protect their interests."⁹⁵

The basic technological model has as many variations as advocates. Two major models are presented in the recent book, The Digital Dilemma: Intellectual Property in the Information Age. The first is to "mark the bits," in effect, create a digital watermark that will be duplicated along with any copies that are made.⁹⁶ The other major proposal is to "reattach the bits" to a specific piece of hardware, thus making it more difficult to create illegal copies. This technique is more challenging when used with general use computers, rather than specific, single use pieces of hardware, but examples are currently on the market.⁹⁷ The aforementioned a2b technology developed by AT&T is an example of "reattach the bits" technology available since 1999.⁹⁸ In effect, redistribution of a file under this plan would be futile, as a particular copy would be coded for a particular computer, and would only play on that piece of physical machinery.⁹⁹ This model, however, does not work for situations like those in RIAA v. MP3.com, which specifically deal with a user's ability to play his or her CD collection from any Internet-connected computer.

Companies like AT&T and Microsoft are creating their own technological copyright protection schemes, rather than waiting for the legislature and the courts to figure out the mess. Microsoft, for example, has created a "bookplate technology" system to provide copyright protection to books distributed on its new Microsoft Reader device.¹⁰⁰ In the advertisement presented in the February 2000 issue of Brill's Content, Microsoft explains that an author can actually choose the level of copyright protection he or she wishes. One way it "keeps honest people honest" is by digitally imprinting the user's name on the title page of the ebook. Alternately, the author may choose a more rigorous technological copyright protection that actively deters illegal copying.¹⁰¹ Or an author could reject the technological model and allow free copying of his or her work in the digital format. "MS Reader isn't burdened with copy protection overkill. Instead, it provides publishers and authors with a choice of security options appropriate to the level of protection required."¹⁰² The fact that the MS reader's solution to the copyright problem is multi-part reflects the indecision in the industry as a whole as to how copyright protection should be implemented. It may allow the user to help determine which scheme wins in the end--voting with his or her mouse, rather than with his or her feet.

The technological solution is not always the best solution; changes in technology simply occur too frequently. "No protection scheme lasts forever. Any time content is valuable, some people will be motivated to find ways to break the protection mechanism."¹⁰³ In addition, "it is ineffectual to halt the ingenuity of hackers or the pace of technological innovation."¹⁰⁴

For example, motion picture companies embraced the new DVD technology several years ago, with the understanding that protective codes based on time zones would be installed in each disk. This attempt to prevent piracy failed, however, when a Norwegian teenager cracked the code and made the solution available on the Internet for free.¹⁰⁵

The technological solution at least moves at a faster pace than a legislative one, but it is an imperfect model, as illustrated by the problems encountered in maintaining DVD protection. While it is conceivable that the recording industries trying to protect piracy and illegal copying could keep pace with the emerging technology, and continue to develop new anti-copying measures, it would be an immensely expensive undertaking.¹⁰⁶ But is it more expensive than the continual drafting of (and lobbying for) new legislation that has no real hope of anticipating future technological advancements and the legal issues that will arise with them? Is it more expensive than the lawsuits that will have to be filed to try to make some sense of how to interpret how the old copyright laws affect these new cyberspace innovations?

Perhaps, then, a market driven, economic model is the best for this fast-paced Internet world. "One way to cope with piracy is to provide a more attractive product and service."¹⁰⁷ The fact is that, for as many hundreds of MP3 sites as there are, it can be extremely difficult actually to find an MP3 file on the web. "Why experience 30 minutes or an hour of frustration, if for a dollar or so you can have what you want easily, reliably, and quickly?"¹⁰⁸

John Perry Barlow describes how following an economic, market driven model of intellectual property actually created enormous benefit. Barlow writes songs for the Grateful Dead, and claims that the fact that the band encourages bootlegging of concerts is the reason for its enormous success on tour. "Instead of reducing the

demand for our product, we are now the largest concert draw in America, a fact that is at least in part attributable to the popularity generated by those tapes."¹⁰⁹

One could also look to the phenomenon of shareware for an illustration of this economic principle. For example: a software author, the holder of a copyright in the program, decides to distribute his software freely. Often, the author includes in the software a brief notice, requesting that if the user enjoys the software, he or she send a requested amount of money to the author. Such a donation is not necessary for the user to have full use of the program; compliance is completely voluntary. But by distributing the software free of charge, the author reaches a significantly larger audience than he or she would have, had the program been packaged and placed on the shelves at CompUSA. The author might well make more money through receiving voluntary donations from a small percentage of the total number of users who enjoy the product and wish to encourage the author to produce and distribute more.

There is also value to grasping a much larger market share than would be likely or even possible if the author were to sell the program. Netscape, for example, gained market dominance in the browser market (at least until Microsoft started bundling Internet Explorer in its operating system) in part by giving its software away for free.¹¹⁰ One way in which companies make "money with free software is to brand it and distribute it with other products and services."¹¹¹ Other examples of companies using this technique include MusicMatch Jukebox and RealAudio.

Case law may, for now, pose some barriers to such applications of a market-driven copyright protection regime. The Storm Impact case, for example, dealt with a set of facts involving shareware. The creator of a shareware program sued the Software of the Month Club (SOMC) for copying its shareware in its entirety and distributing to SOMC’s members.¹¹² The court rejected SOMC’s argument that its increased distribution of the MacSki program was "a benefit to the author,"¹¹³ "Congress has not designed, and we see no warrant for judicially imposing, a ‘compulsory’ license’...to copyrighted works."¹¹⁴

The insistence that, even in this new digital age, we fit advancing technologies and new schemes into a copyright regime that did not and could not anticipate any of this, seems like a Barthian tautologistic mindset. The insistence that a copyright is a copyright, even when considered in a digital context, is a circular argument. "One takes refuge in tautology as one does in fear, or anger, or sadness, when one is at a loss for an explanation."¹¹⁵ The music industry certainly does seem scared, just as the motion picture industry did at the advent of the home VCR. And confusion seems obvious given the range of suggestions as to how to make a new examination of copyright law as it applies to digital copies. "The list of protection alternatives—which is probably incomplete—suggests that the question of copyright for digital works must be reviewed in a new light."¹¹⁶ It just remains to be seen which scheme will prevail. 

1. Sylvia Dennis, MP3 Could Restructure Views on Music, Newsbytes News Network, March 13, 2000.

2. Michael D. Stein and Richard D. Watkins, Rio Case Oks Carnival of Music Copying: 9th Circuit Held that the Rio is not a ‘Digital Audio Recording Device’ and Thus Does not Violate the Audio Home Recording Act, Nat’l L.J. B7 (col.1), Oct. 18, 1999.

3. Walter Mossberg, The Web is Alive with Digital Music, Indian Express Newspapers, Oct. 6, 1999.

4. Scott Hacker, MP3: the Definitive Guide. http://www.oreilly.com/catalog/mp3/chapter/ch02.html

5. Scott Hacker, MP3: the Definitive Guide. http://www.oreilly.com/catalog/mp3/chapter/ch02.html

6. Walter Mossberg, The Web is Alive with Digital Music, Indian Express Newspapers, Oct. 6, 1999.

7. Scott Hacker, MP3: the Definitive Guide. http://www.oreilly.com/catalog/mp3/chapter/ch06.html

8. Walter Mossberg, The Web is Alive with Digital Music, Indian Express Newspapers, Oct. 6, 1999.

9. Walter Mossberg, The Web is Alive with Digital Music, Indian Express Newspapers, Oct. 6, 1999.

10. See www.musicmatch.com

11. See http://www.billboard.com/charts/internet.asp

12. Megan Twohey, Land of the Free and MP3, National Journal, Jan. 15, 2000.

13. Arminta Wallace, Sound: Music in the Key of 'e', Irish Times, Feb. 4, 2000.

14. Arminta Wallace, Sound: Music in the Key of 'e', Irish Times, Feb. 4, 2000.
 
 

15. RIAA v. Diamond Multimedia, Inc., 180 F.3d 1072, 1075 (1999).

16. Pub. L. No. 94-553, 90 Stat. 2541 (1976) (codified as amended at 17 U.S.C. §§101-1101 (1976)).

17. 17 U.S.C. §102(a)(2)

18. 17 U.S.C. §102(a)(7)

19. 17 U.S.C. §101 (Sound recordings or phonorecords are defined in the Copyright act as "material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.)

20. 17 U.S.C. §101

21. 17 U.S.C. §106 grants copyright holders the exclusive right to:

23. 17 U.S.C. §107 [T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –

25. Shahram A Shayesteh, High-Speed Chase on the Information Superhighway: The Evolution of Criminal Liability for Internet Piracy. 33 Loy. L.A.L.Rev. 183, 197-198 (1999).

26. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984).

27. Dan L. Burk, Muddy Rules for Cyberspace, 21 Cardozo L. Rev. 121, 140 (1999).

28. See www.mp3.com/summit/

29. See http://www.riaa.com/about/ab_faq.htm).

30. Id.

31. See http://www.riaa.com/about/aboutus.htm).

32. See (http://www.riaa.com/about/ab_faq.htm).

33. RIAA v. MP3.com, No. 00 Civ. 0472 (Dist.Ct.N.Y filed Jan. 21, 2000). www.mp3.com/news/533.html.

34. Id.

35. See http://www.mp3.com/aboutus.html

36. Id.

37. See http://www.riaa.com/tech/press/022500.htm).

38. Arminta Wallace, Sound: Music in the Key of 'e', Irish Times, Feb. 4, 2000.

39. See http://www.riaa.com/tech/press/022500.htm).

40. MP3.com, No. 00 Civ. 0472 (Dist.Ct.N.Y filed Jan. 21, 2000).

41. Sam Allis, Battle Brews on Rights to Web Content Those Who Think Material Should be Free are at Odds with Owners, Current Law, Boston Globe, March 26, 2000 (A1).

42. Rob Pegoraro, Setting e-sound free - When you pay for a CD, are you really buying the music?, Irish Times, March 27, 2000.

43. Id.

44. MP3.com, No. 00 Civ. 0472 (Dist.Ct.N.Y filed Jan. 21, 2000).

45. Sara Robinson, Three Copyright Lawsuits Test Limits of New Digital Media, New York Times, Jan. 24, 2000.

46. 17 U.S.C. §§1001-1010

47. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984).

48. See Id. at 533.

49. See Id. at 418.

50. See Id. at 419.

51. Realnetworks, Inc. v. Streambox, Inc., (W.D. Wash.), 2000 WL 127311, *1).

52. See http://bboard.mp3.com/mp3/ubb/Forum8/HTML/000050.html).

53. Realnetworks, 2000 WL 127311 at 1).

54. MP3.com, No. 00 Civ. 0472 (Dist.Ct.N.Y filed Jan. 21, 2000).

55. Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 780 F.Supp. 1283, 1284 (1991).

56. Id. at 1293.

57. Id. at 1292.

58. Id. at 1290.

59. Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569, 572 (1994).

60. Id. at 573.

61. Id.

62. H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 65-66 (1976).

63. Sony, 464 U.S. at 451.

64. Stewart v. Abend, 495 U.S. 207, 237 (1990). See also Brewer v. Hustler Magazine, Inc. 749 F.2d. 527,529 (CA9 1984)

65. Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1116 (1990).

66. 17 U.S.C. §107 (3).

67. Sony, 464 US at 449-450.

68. Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1526, 1527 (1992).

69. Rob Pegoraro, Setting e-sound free - When you pay for a CD, are you really buying the music?, Irish Times, March 27, 2000.

70. Leval at 1122.

71. Harper and Row Publishers, Inc. v. The Nation Enterprises, 471 U.S. 566, 570 (1985).

72. MP3.com, No. 00 Civ. 0472 (Dist.Ct.N.Y filed Jan. 21, 2000).

73. Patti Hartigan, MP3.com’s Cool New Service Threatens Industry, Boston Globe, Jan. 28, 2000.

74. Id.

75. Infinity Broadcast Corp. v. Kirkwood, 63 F.Supp.2d 420, 424 (1999).

76. Id. at 424.

77. Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104, 108 (1998).

78. Id.

79. Leval at 1123.

80. Id.

81. H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 65-66 (1976).

82. Leval at 1107

83. Diamond Multimedia, 180 F.3d at 1075.

84. Richard D. Watkins, Rio Case Oks Carnival of Music Copying, NLJ B7 p.1, Oct. 18, 1999.

85. Diamond Multimedia, 180 F.3d at 1076, citing 17 U.S.C. §1001(5)(A).

86. Id. at 1077, citing H.R. Rep. 102-873(I)(1992), reprinted at 1992 WL 232935, at 35.

87. Diamond Multimedia, 180 F.3d at 1078.

88. Id. at 1079).

89. Id.

90. Christopher Jones, Dueling over Digital Music Rights, Wired News, March 22, 2000.
 
 

91. Sony, 464 U.S. at 426.

92. Dan L. Burk, Muddy Rules for Cyberspace, 21 Cardozo L. Rev. 121, 165 (1999).

93. Shayesteh at 197-198.

94. Eric Schlachter, The Intellectual Property Renaissance in Cyberspace: Why Copyright Law Could Be Unimportant on the Internet, 12 Berkeley Tech.L.J.15, 16-17 (1997).

95. Richard D. Watkins, Rio Case Oks Carnival of Music Copying, NLJ B7 p.1, Oct. 18, 1999.

96. See The Digital Dilemma, http://books.nap.edu/html/digital_dilemma/ch2.html

97. Id.

98. Id.

99. Id.

100. See www.microsoft.com/reader

101. See Brill's content, Feb 2000, Microsoft advertisement.

102. Id.

103. See The Digital Dilemma, http://books.nap.edu/html/digital_dilemma/ch2.html

104. Sam Allis, Battle Brews on Rights to Web Content Those Who Think Material Should be Free are at Odds with Owners, Current Law, Boston Globe, March 26, 2000 (A1).

105. Arminta Wallace, Sound: Music in the Key of 'e', Irish Times, Feb. 4, 2000.

106. Id.

107. See The Digital Dilemma, http://books.nap.edu/html/digital_dilemma/ch2.html

108. Id.

109. John Perry Barlow, The Economy of Ideas, Wired 2.03, March 1994 (http://www.wired.com/wired/archive/2.03/economy.ideas_pr.html).

110. Larry Seltzer, PC Magazine Software Returns To Its Source, PC Mag., 1999 WL 6781131, March 23, 1999.

111. Id.

112. Storm Impact, Inc. v. Software of the Month Club, 13 F.Supp. 2d 782, 784 (1998).

113. Id. at 790.

114. Id., citing Harper and Row, 471 U.S. 539.

115. Michel Barthes, Mythologies, 152.

116. Burk at 166.