Goodies to Go ™
February 7, 2000– Newsletter #66

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.