Now here's a fun thing: MP3 has (yet another) strategy for avoiding what could be a truly bone-crushing, company-slaying payout on that copyright-infringement suit it lost to Universal Music Group in September. You'll remember that Judge Jed Rakoff ordered the intrepid online service to pay out a whopping $25,000 for each Universal CD offered for streaming on My.MP3. That's a lot of CDs (the trial to figure out how many CDs is slated to begin on Monday).
MP3.com is going to argue that there aren't any—almost none, anyway, that Universal is entitled to collect on.
According to an argument advanced by MP3's legal team (and please, if I ever pull an O.J., someone remember to call these guys for me), Universal screwed up when it registered some 6,700 recordings as works-for-hire on certificates filed with the US Copyright Office. Oh, Universal would like to think those works were for hire (and, therefore, owned by the record company lock, stock, and treble clef), but the pungent 1999 federal law allowing sound recordings to be so designated was repealed after artists raised merry hell over it—a sensible thing for them to do: If you write and record a song, why should you give all your rights to a bunch of damned accountants?
If the recordings aren't works-for-hire—and several federal courts have since ruled that they are not—the record company filed invalid copyright registrations. If the copyright notices are invalid, Universal's ability to collect could be impaired or even thrown out on this technicality. And for a change, the MP3 crowd has inside help: Artists from the Recording Artists Coalition—previously no friend of the MP3 revolution—have asked to file a legal brief in support of MP3.com's invalid registration contention.
Strange bedfellows, these—the RAC (previously known as the Artists Coalition) was to date best known for anti-piracy ads featuring the likes of Sheryl Crow and Don Henley. But the artists stand to benefit if Rakoff agrees that the works aren't for hire. If Judge Rakoff so rules, artists—not just Universal artists but all artists affected by work-for-hire nastiness—might be eligible to regain the copyright on their works after 35 years. (Otherwise, the record companies retain copyright indefinitely.) Artists don't like to be pirated, but in this case, they clearly understand that the piracy worth fighting is that of the copyright-thieving record companies, not the MP3 faithful.
Universal is the last large burr in MP3's saddle; it's previously come to terms with the four other major labels and with the National Music Publishers' Association. The strategic preview of this trial strategy may be an effort by MP3.com to get the other four companies to lean on Universal, which has eschewed any MP3.com settlement in favor of a very similar arrangement with tiny start-up Musicbank; after all, their artists would also be looking at a 35-year escape clause if this challenge works out. Back in August, the coalition teamed with the RIAA to petition Congress to repeal that works-for-hire legislation; now, it's helping out the MP3 crowd by siding against the industry. Fickle? No, wise, if weird.
In other odd shackings-up (and we're going to have to leave out of our survey the fascinating Music Owners' Listening Rights Act of 2000, proposed Congressional legislation which would essentially legalize My.MP3-type services), let us now turn our attention to the curious nuptials of Napster and Bertlesmann. Bertlesmann is one of the companies that already settled with MP3; now, it's gone and formed an alliance with everyone's favorite file-sharing service. It'll probably manifest as a subscription-based area on Napster where folks could legally download songs from the giant Arista/RCA/BMG (etc.) catalog, possibly for about $4.95/month (in other words, cheap). Not only are the other record companies a bit taken aback—Universal has already said it won't cut a similar deal—but the fanbase is suddenly kicking, with various armchair quarterbacks accusing young Shawn Fanning of selling out for either making a sane compromise that benefits the industry, artists, and fans, or wearing a suit. It's the Slashdot crowd. In a word, folks, deal.
And finally, from our friends in that other Washington, the US Copyright Office has done the right thing when Congress would not, ruling that critics of filtering software are permitted to burrow through that software's encryption schemes to see the lists of blocked Web sites that such programs use to do their work. This kicks a small but significant hole in the poisonous Digital Millennium Copyright Act, which disallows such scrutiny. At this writing, I don't know whom we will have elected into 1600 Pennsylvania Ave., but I must say that other portions of the government are proving surprisingly Net-friendly this week.