Goodies to Go (tm)
February 7, 2000-- Newsletter #66

By Joe Burns

Goodies to Go (tm)
February 7, 2000--Newsletter #66
Please visit http://www.htmlgoodies.com

Greetings, Weekend Silicon Warriors,

With Y2K firmly behind us we can now start to get upset about more important things, like digitally altering television images. During the Y2K broadcast on CBS, over Dan Rather's shoulder was the Times Square, NYC, jumbo screen. The logo of a different network was being displayed. We can't have that on CBS, so someone digitally altered the Times Square screen to display the CBS "eye". It has some television purists and others quite upset. It bugs me a little too. If they can alter that - what will be next?

Did you hear...

Two weeks ago, I asked you to think about privacy on the net. Many of you were angry at my stance. You'll like this: Harriett Judnick has filed suit in a California court alleging that DoubleClick.com unlawfully obtained and sold personal information about her and others. The suit is meant to stop companies like DoubleClick from a practice known as "profiling" where they collect information on people and their habits. I'll report the results if and when I hear them.

Here's another one: Universal Image, which does business as chalkboardtalk.com, is suing Yahoo over the use of cookies. The lawsuit doesn't surprise me, it's the law they're using to file the suit. They're using Texas' anti-stalking law. Interesting...

And again: Sen. Robert Torricelli, Democrat from New Jersey, will propose a bill in the U.S. Senate protecting a person's privacy rights. The bill would specifically force companies to ask for permission to sell the information gathered on a person.

It was good to hear that U.S. President Bill Clinton announced he wants to lessen the "digital divide" in today's schools. In his State of the Union speech, he pledged to put money towards getting all U.S. classrooms up to snuff and up to date. I think that's a good thing.

Pinks slips at Amazon.com. Now that the huge Christmas rush has past, 2 percent of the workforce will be let go. Most of the employees being let go are in the Seattle area. Amazon.com is helping the employees find other positions.

Now onto today's topic...

There you are. You're sitting at your desk at work and suddenly the urge comes over you. You simply must hear that new Backstreet Boys single. But, oh darn. You've left your CD at home.

Not to worry! Now, through the magic of My.MP3.com, you can listen to that music anytime you're near a computer.

If you haven't heard about this, get ready for a fun argument. I guarantee this is one people will not quickly straighten out.

The Recording Institute Association of America (RIAA) has filed suit against MP3.com for copyright violation, but it's not what you think. They're not being sued because of the compression system people are using to post songs to the net, they're suing because MP3.com is posting songs to the net... or are they?

MP3.com has a new service available to music buyers. It's called the Instant Listening Service or Beam-it. Here's the deal. You buy a CD from an MP3-approved outlet, and MP3.com will allow you to post the songs you bought to the Web within the domain name My.MP3.com.

Furthermore, if you already own a CD containing "approved" songs, you can pop your CD into a reader and upload those songs to your account. Cool, Huh?

Now, as you might have guessed, MP3.com does not allow you to upload your own songs. They copy the song over from their database for you. It's a real time saver, I'm sure.

You see, MP3 purchased 40,000 CDs and recorded each song into the format and placed them upon a Web site.

You open an account, "upload" the song titles you own, and then you can access those songs from the songs already placed there by MP3.com. Get it? That's the reason why you have to buy the music from an approved place or have an approved CD. You don't really upload any music. Your account is filled by the songs already on the server.

As far as I can tell, you actually do get a copy into your account. It's not like there is a central database and you play off of that. If you open an account and ask for XYZ song, XYZ song is transferred into your account.

So, let's look at the facts.

The Copyright Act of 1971 prohibits making copies of copyrighted music.

The exception to the rule came in 1992 when the U.S. Congress stated that people may make copies of music they purchased if they keep those copies for their own personal use. That makes sense. I don't want to have to buy three copies of the same CD for home, car and work. I also don't want to lug one CD around.

Now that we have the ground rules, let's look at the players.

MP3.com bought the 40,000 CDs and could legally make a copy. So far so good. A kid goes out and buys the latest album by his favorite group. That group's album happens to be an approved album, meaning it's one of the thousands upon thousands held by MP3.com.

Still, I don't see a big concern.

The kid gets an account at My.MP3.com. He proves he bought the CD through back-checking of receipts (again, the reason for the "approved" retailers). A copy of his favorite song from the album is transferred into the account. He goes to work at the video store. Business is slow, he logs onto the Internet, plays the MP3.com version, and hums along with the music.

Somewhere in that last paragraph lies the illegal part of this transaction.

MP3.com can make a copy. The kid who bought the CD can make a copy. Technically, the kid wouldn't have been able to make a copy into his account unless he bought the CD in order to make the copy. Is it illegal that MP3.com simply transferred the music file over into the kid's account to produce a copy? I mean, wasn't it was going to happen anyway? Maybe the kid was going to create an MP3 file and upload it to his account in the first place.

This is actually better than the kid making the copy because it's a password protected account. You have to have access to get at the copy. If the kid simply sent it to a Web account, the copy would be there for the world to see...and hear.

Now you know the general facts of the story. Is this illegal? Does it break copyright laws? If you answer yes, tell me where. Both entities bought the music. Both made a copy intended for personal use.

I think most people, including me, point at the part where the kid receives a copy into his or her account via MP3's database. If that's your final answer, then you're on the right track, says Lon Sobel, editor of Entertainment Law Reporter. He states, "The copy was made by MP3.com, not by the consumer, I couldn't imagine how they thought that what it was doing was legal."

I guess that's right. So, let's make it all legal. When you sign up for an account with My.MP3.com, you'll be sent a piece of software that allows you to turn your songs into MP3 format. You'll also be allowed access to the account in order to perform an upload.

The result is exactly the same except that the recording is probably pretty bad and it took longer to complete the process.

Now, this is going to upset someone who will ask me how I would feel if someone made a copy of HTML Goodies for personal use. Before you ask, it's not the same thing. Copyright law does not allow for you to make a copy. It does allow a copy of the music.

MP3.com chairman Michael Robertson is standing firm, stating that he can't see how the music industry feels this is a bad thing. I have no doubt there will be a fight and a half over this one in court.

The entire argument will hinge upon one question, "Who made the copy?" The music industry will claim MP3 did. MP3 will claim the kid setting up the account and enacting the server to transfer the copy did it. The music industry will state that the copy was not made from the kid's CD, but rather from the MP3-owned file. MP3 will come back and say that in order to make a copy, the music must have been purchased first.

Are there enough shades of gray to state that MP3 is acting against copyright law? Thank goodness it's up to a jury. I'm going back and forth on the issue with every paragraph, just sitting here writing this newsletter.


That's that. Thanks for reading.

Joe Burns, Ph.D.

And Remember: You've heard of slapstick comedy? It's a form of low-brow comedy named after a common prop, a slapstick. A slapstick was a log rod with a secondary piece of wood attached to it. When one character would hit the other, the secondary stick would slap against the first and make a loud slapping noise. It sounded a lot worse than it was. The name stuck.

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