Beyond the Barline
The People vs. the Recording Industry—Part 1
In the short time it has been in existence, MP3.com has become one of the most popular sites on the Internet. It began as a promotional resource for independent artists, who were invited to post recordings online in the popular MP3 (MPEG 1 Layer 3) audio format. A great idea, both for new, undiscovered bands, and for artists outside the musical mainstream. In January, however, MP3 broadened its scope by introducing “My MP3.com.” Among the features of My MP3.com are a personal account where members can store MP3 files encoded from their CD collections, and the Instant Listening Service which allows MP3.com customers to listen to CDs purchased through MP3.com immediately (and again in MP3 format) rather than waiting until they arrive.
Within ten days of this announcement (January 21 to be exact), MP3.com was sued by the RIAA (Recording Industry Association of America, representing the five major labels: BMG, Universal, EMI, Warner Record Group, and Sony Music) in the Federal District Court in New York. The RIAA claims that MP3.com is guilty of copyright infringement by building “an unauthorized digital archive...without making the slightest attempt to obtain permission from copyright owners to do so.” That same day, Hillary Rosen, the President and CEO of the RIAA wrote a letter to Michael Robertson, the CEO of MP3.com, informing him of the lawsuit. This letter has since been posted at the RIAA’s Web site. What was Robertson’s response? According to an article on Wired.com posted on January 27, he claims that MP3.com’s actions fall within Fair Use Rights, such as the right to copy a CD that one has purchased to cassette for use in a car stereo. He has since counter-sued the RIAA claiming they “have published a multiplicity of negative and disparaging statements.”
As a creative artist, I take the issue of copyright infringement very seriously. My copyright is my only guarantee that I will receive fair compensation for my work. I advise musicians to never give up their copyright, no matter how much they are offered in return. Anything else can be compromised, but the identity of authorship is sacred. Given my view on this subject, my first reaction upon hearing this story was to think that MP3.com had, intentionally or otherwise, overstepped both legal and ethical bounds. On further examination, though, their actions are well within Fair Use Rights. The files stored in individual accounts are assumed to be encoded copies of CDs owned by the account holders. The files accessed through the Instant Listening Service are expressly from CDs purchased by the account holders. In no case is MP3.com encouraging the illegal exchange of recordings, and they are no more liable for someone encoding a borrowed or bootlegged CD than the manufacturer who built the CD rack in which this ill-gotten plastic disk resides. Furthermore, it is my opinion that both the RIAA and their lawyers are completely aware of this fact. So why have they pursued this case?
Because MP3.com and the Internet in general are the greatest threat the recording industry has ever faced.
First, ask yourself this question: What purpose does a record label serve for an artist? I can raise money to pay for a recording, hire an graphic artist to design an attractive cover, and duplicate CDs for less than two dollars a pop. Sure it’s a large investment, but it’s no longer completely out of the question. What I can’t do is get recordings into record stores outside of a small area within a short drive from my home. That’s the role of a record label—distribution, and until recently only a few large labels could cover the entire country and abroad. The Internet changed that, and soon it will make the record labels as we now know them obsolete.
The five major record labels as represented by the RIAA claim to be fighting for the rights of both artists and consumers. If this were true, it would be a first. The big record labels have never cared about anyone but themselves and their own interests. If they did, they wouldn’t ask artists to sign away their copyrights for a multi-album contracts with escape clauses in case the first (or second or third) album flops. They also wouldn’t have pulled LPs out of record stores in the late 1980s in order to keep the price of CDs at an outrageous average of $15.99 per unit.
It’s only a matter of time before a major label artist with a loyal fan base already in place leaves his or her record label to sell recordings exclusively on the Internet for far less than the artificially inflated “retail price.” That artist will still make a very good living and fans will be far less tempted to pirate a $9.99 CD.
The Other Case
Napster.com provides a service that also has the recording industry up in arms. Instead of supplying the MP3 files themselves, though, Napster provides an Windows application (a Mac client called “Rapster” is now available online, as are Macster and MacStar) that searches for MP3 files across the Net. Although Napster offers to sign up artists voluntarily, and they post both a clear copyright policy and a disclaimer, their legal defense is much weaker. Though I suspect the RIAA’s motivation in suing Napster (the suit was filed back in December) is the same as in their suit against MP3.com, they have a stronger case thanks to the Digital Millennium Copyright Act. (A side question: Why does everything these days have to be tied to the so-called millennium?) This law, passed in 1998, makes it easier to sue the manufacturers of tools that are subsequently used for piracy, whether the manufacturer had that intent or not. I do wonder how enforceable this law is. Can the manufacturers of every CD burner, VCR, or cassette deck be sued? I use these tools (well a burner at least) to reproduce my own work, not to pirate others’.
The Case That Never Was
Myplay.com is another up and coming competitor to MP3.com. What do they offer? A “locker” that holds up to 25 MB of MP3s and the ability to setup playlists and share them with others. It seems that this company is overstepping the same copyright protections as MP3.com, and, by encouraging users to share their collections, facilitating piracy to an arguably greater degree. So where is the expected lawsuit from the RIAA? To answer this question look at the standard “About Myplay Inc.” blurb at the bottom of their press releases. They list themselves as “the legal and industry-supported Web-based service” and boast the support of major record labels. Why would companies affiliated with the RIAA also affiliate themselves with Myplay.com while suing MP3.com for providing a similar service? It’s because of what Myplay.com doesn’t deliver. MP3.com exists principally to promote independent artists outside the mainstream of the recording industry. MyPlay.com, in contrast, features only those artists already signed by the recording industry. They do not threaten the RIAA’s distribution monopoly.
Elsewhere on the Web
On January 26th, Music.com, a principal competitor to MP3.com, announced that they had selected Microsoft’s Media Player “as the preferred format for online music distribution” on their Web site. In choosing a proprietary format (Media Player) over a universal one (MP3), Music.com has acted to limit the choices of consumers to the benefit of themselves and Microsoft. No, I am not bringing this up just because of Microsoft’s involvement. The MP3 format is an accepted standard on the Internet, and doesn’t require a specific player to download it. Media Player is free and accessible to Mac users now, but only by Microsoft’s choice. At a later date, they could change their policy, bundling it with Internet Explorer for example and thus restricting browser choice as well.
I also have to take issue with a couple of statements in their press release. They claim that their choice was based on performance, citing a test conducted by ZD’s labs. No offense, but I don’t trust ZDNet’s impartiality in regards to anything Windows related. The press release also never explains how this test was conducted. They then proceed to laud Media Player, claiming that “music comes out sounding the way it was meant to” and that it “makes the technology transparent.” If only Music.com’s motives weren’t so transparent. In the same press release, Media Player is referred to as “the leading digital media platform” even though it rates behind both Real Player and QuickTime in number of users.
If You Can’t Beat Them
On February 4th, BMG, Universal, EMI, Warner Record Group, and Madonna’s Maverick Label announced a large but undisclosed investment in Listen.com. Sony Music has already invested a large sum in this little known competitor of MP3.com, and the inclusion of the five major U.S. labels that constitute the RIAA represents a substantial investment in a technology that these labels previously claimed to be such a threat to both artist and consumer interest. Obviously this technology poses no real threat to the recording industry, as long as they control it.
The Real Danger
So it all comes down to fewer and bigger corporations attempting to wrestle control from the people they claim to service. The recent AOL/Time Warner merger threatens to create a media monopoly that Bill Gates could only dream about. What piracy exists on the Internet, while inexcusable, is insignificant compared to the real danger: one company controlling both what we hear and how we hear it.
Also in This Series
- Ready or Not! · November 2002
- The Other Petition · August 2002
- The Samples Have Been Changed to Protect the Innocent · May 2002
- Record Execs Ate My Hard Drive! · April 2002
- And the Award Goes to… · March 2002
- Expos, From a Distance · February 2002
- My Resolution · January 2002
- Too Much Hype · November 2001
- And They’re Off! · September 2001
- Complete Archive