[NYT] Copyright and Copying Wrongs: A Web Rebalancing Act

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From: Adam Rifkin (adam@KnowNow.com)
Date: Mon Sep 11 2000 - 02:19:31 PDT

Sing like Sting to Dire Straits: "I want my MP3..."


"Look at them yo-yo's, that's the way you do it, you play the guitar on
the MP3. That ain't working..."

> Copyright and Copying Wrongs: A Web Rebalancing Act
> By AMY HARMON, September 10, 2000

> When Michael Robertson emerged last week from a Manhattan court, pale
> beneath his California tan, the chief executive of the MP3.com
> online music service told reporters that consumers want to be able
> to listen to their music from wherever they are. That MP3.com's
> technology allows them to do that. And that the law shouldn't get
> in the way.

> Unfortunately for Mr. Robertson, a federal judge had just ruled
> that his San Diego-based start-up must pay Universal Music Group up
> to $250 million for infringing its copyrights.

> There is a large legal irony here. MP3.com may be thoroughly
> punished (the company is appealing the ruling), even though it has
> tried to ensure that people pay for copies of the music they want
> to listen to, said Pamela Samuelson, co-director of the University
> of California's Berkeley Center for Law and Technology. By
> contrast, Napster, another high-profile Internet music company
> being sued by the major record labels, has so far eluded any legal
> sanction for its activities, even though it exists to give people
> free access to the same music.

> The MP3.com verdict seems to underscore a mismatch between the
> intentions of traditional copyright law to strike a balance
> between the rights of owners and the interests of users and its
> effect in the Internet era.

> As books and movies follow music from the physical to the digital
> realm, some legal experts argue that a new balance must be struck
> between copyright holders and the users of their works if copyright
> is to continue to drive economic and creative development.

> "As these cases and others like them get sorted out we will learn
> to what extent copyright law is being interpreted to give the
> owners of content an indirect monopoly over the development of
> useful consumer information technologies," said Peter Jaszi, a law
> professor at American University. "That's really the stake in both
> of these cases."

> For those just tuning into the digital music drama, Napster is a
> San Mateo, Calif.-based company whose software allows users to
> quickly find music files on the Internet and copy them to their own
> digital collection, without regard to copyright. Millions use the
> service daily.

> My.MP3.com, the MP3.com service at issue in the company's court
> battle with Universal, took a very different approach, one that
> Judge Jed S. Rakoff commended in contrast to what he called, in an
> apparent reference to Napster, "the kind of lawless piracy
> seemingly characteristic of some others operating in this area."

> My.MP3.com lets people listen to music they already own, but
> without carrying their CD's with them. All they need to do is log
> onto MP3.com's Web site from any Internet-connected device.

> The service works by verifying ownership of every music CD a user
> inserts into the CD-ROM drive of his computer. A copy is then made
> from MP3.com's database of CD's and deposited into the user's
> on-line locker. A user could also buy a CD from an on-line
> retailer, which records the transaction with MP3.com.

> Judge Rakoff found, however, that it was illegal for the company
> to copy tens of thousands of CD's into its database, and most legal
> experts agree that, under the letter of the law, it is.

> Meanwhile, a recent federal judge's order that would also have
> shut down Napster was stayed by the Ninth Circuit Court of Appeals,
> and some legal analysts, Ms. Samuelson and Mr. Jaszi among them,
> think Napster has a better chance of winning its battle with the
> major record labels than MP3.com.

> Napster argues that, since users of the service aren't buying or
> selling the music they listen to, no one is infringing anyone's
> copyright. Therefore the company cannot be liable. In its appeals
> brief, the company cites the 1992 Audio Home Recording Act, which
> the same appeals court found in a previous case protects all
> noncommercial copying by consumers of digital and analog music
> recordings.

> The brief states: "The line Congress drew was between commercial
> and noncommercial copying. If Plaintiffs have a quarrel with that
> line given the scale of noncommercial sharing that the Internet now
> facilitates, they must address those concerns to Congress."

> Some legal experts and business executives suggest that the
> eventual outcome of the two cases may well provoke Congress to
> adjust the law to fit the realities of new technology.

> Meanwhile, though, the current system is seen as an obstacle by
> Internet music entrepreneurs. Doug Camplejohn, the chief executive
> of Myplay, a competitor of MP3.com, said the license terms now
> being offered by the record companies are not economically viable
> without charging consumers a subscription fee to get access to
> music they already own. For that reason, Myplay's two million users
> will continue to laboriously copy and upload their own CD's.

> "There are a whole set of services that will grow the entire
> record industry as well as make opportunities for companies like
> ours that we are not able to do today because the law prevents us,"
> Mr. Camplejohn said. "The consumers are ultimately the ones who end
> up suffering."


You try to scream, but it comes out as a yawn. -- Barenaked Ladies, "Pinch Me"

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