JED RAKOFF THOUGHT about becoming a songwriter in college, but he became a judge instead. Rakoff's gracious way with words is part of the reason he's on the Second Circuit Appeals court. Being on the Second is the reason Rakoff presided over RIAA v. MP3.com, in which 10 plaintiff record companies squared off against that musical dot-com. And his ruling on that case—that My.MP3 violates copyright law—is how Judge Rakoff became yet another pain in Michael Robertson's butt. How's that for irony?
Michael Robertson, the head of MP3.com, doesn't listen to much music; he has site visitors—4,700,000 last month, says PC Data—to do that for him. He has, however, been a tireless advocate for how they listen, at the front of most of the music-and-the-Net battles of the past three years. Until now, though, he hasn't had a multibillion dollar judgment hanging over him. That's a present from Judge Rakoff, who didn't agree that allowing folks to store copies of their music on MP3.com's servers constituted merely storage, nothing more, certainly nothing copyright-violating.
HERE IS WHAT RIAA said (and Judge Rakoff agreed) that My.MP3.com did wrong: My.MP3 stores copies of all the music you own in MP3 form on its servers, so you can log into your personal account and listen to your entire collection. What is "all the music you own?" My.MP3 knows what you own because you put each CD in your computer and "beam" its information to My.MP3. The service notes that you own a copy of Bubba's Ragtime Hits and pulls MP3 copies of each track from its own copy of the CD into your account. Leaving aside whether you actually own that copy of Bubba or just borrowed it, the record companies seized on the fact that the MP3 tracks come from MP3's own collection and said that the service was thus reproducing those CDs beyond all fair use.
This lawsuit wasn't a surprise attack; many observers saw My.MP3's Beam-It software as a deliberate slap at the RIAA when it launched in January. Many industry observers also call Rakoff's decision tough but fair, based on the merits of the case. But wait, there's more! In a completely unrelated development, MP3.com's own artists are pissed off at the service, which has started displaying artist earnings through the site's "Payback for Playback" program. And then there are the fans, many of whom are so immersed in MP3 culture that the idea of paying for music at all seems absurd.
"One thing about Robertson—he's fearless," notes Bruce Haring, author of the just-published Beyond the Charts: MP3 and the Digital Revolution. Haring, shouldering the unenviable task of writing about the MP3 saga while it's still raging, thinks that whatever the reasons for Judge Rakoff's decision (and whether or not it survives on appeal), the tide has already turned. MP3 will stand. Will Robertson?
For those of you unfamiliar with the music business, Haring's book is an eye-opener, explaining how the record labels maneuvered themselves over the years into a situation where profitability dictates that talent gets burned through like cheap incense and the price consumers pay for music has nothing to do with artist revenue. Coming from a music rather than a tech background (he's written for, among others, Billboard and Variety), he credits the computer industry with a surprising amount of intelligence in coping with copyright issues—and he credits Robertson for pushing the record companies to face technological innovation, something they've hated doing since (literally) the days of the player piano.
Of course, there's more than one way to skin an industry cat. Mike Reed of S3 Diamond Multimedia says that his company is working closely with the record labels to bring MP3s to the people in a way that's comfortable (read: profitmaking) for those entities. These are the folks who brought you the Rio, the portable MP3 player that itself faced a wretched RIAA lawsuit back in 1998. S3 won that lawsuit, which alleged (in part) that the Rio was a device designed to encourage piracy. After that suit, according to Haring's book, RIAA alleged that the lawsuit had only been an attempt to get technology companies to talk to them. Since then those technology companies have been working, with some success, to help the record companies feel better about technology.
Part of that process involves projects like SDMI (Secure Digital Music Initiative), which will in theory prevent the ripping (creation of MP3 files from CDs and other sources) that so annoys the labels. Another aspect is finding ways to trump the MP3.coms of the world by making it more palatable to get MP3s in other, more label-friendly ways. The next Rio you buy is likely to come packaged with a CD of MP3s, some free and some to be unlocked for a small additional fee.
REED SAYS THAT "buying music today is a cumbersome process," what with keeping up with those elusive artists and all. (Reed apparently has no teenaged N'Sync or Britney Spears fans in his house.) He sees a day when buyers tell an online service what kind of music they like, then rely on that service to supply them with a steady stream of "music like this"—for, again, a fee.
If this sounds familiar, you may remember Firefly. That site purported to match your musical tastes with those of other people in order to help you find new music. Amazon uses a descendant of that concept in its "people who bought this book also bought . . ." recommendations. Amazon's version works and Firefly's didn't because Amazon, after years of having its also-bought feature in place, has a huge amount of info to derive those recommendations from, while Firefly did not. If it took Amazon years to make its free feature good, one wonders how the record companies can create a for-profit service designed to do the same thing without a massive head start and with data they simply don't have. Who has that data? Maybe . . . MP3.com?
For the moment, Robertson's service appears to be in no danger, even with this judgment. The industry needs him; it's entirely possible that RIAA will use this decision as a stick to chase him to the bargaining table, where they've got a century of screwing over artists as practice for dealing with these geek upstarts. Michael Robertson may indeed be fearless; the next few months will prove whether he's ironclad.