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ATPM 6.03
March 2000



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Beyond the Barline

by David Ozab,

The People vs. the Recording Industry—Part 1

In the short time it has been in existence, 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” Among the features of My are a personal account where members can store MP3 files encoded from their CD collections, and the Instant Listening Service which allows customers to listen to CDs purchased through immediately (and again in MP3 format) rather than waiting until they arrive.

Within ten days of this announcement (January 21 to be exact), 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 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, 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 posted on January 27, he claims that’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 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 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 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 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, 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 is another up and coming competitor to 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, 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 while suing for providing a similar service? It’s because of what doesn’t deliver. exists principally to promote independent artists outside the mainstream of the recording industry., 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,, a principal competitor to, 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), 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’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 Sony Music has already invested a large sum in this little known competitor of, 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.

Copyright © 2000 David Ozab ( David Ozab is a Ph.D student at the University of Oregon, where he teaches electronic music courses and assists in the day-to-day operation of The Future Music Oregon

Also in This Series

Reader Comments (4)

Mr. Gimp · May 10, 2000 - 01:01 EST #1
As a Ph.D. student, one would expect Mr. Ozab to be able to research well enough to ensure that all of his facts are straight before editorializing an opinion. MyPlay has never had a 25MB locker. It started at 250MB and has since increased to 3GB. As far as the suit is concerned, it's not about the "RIAA monopoly" on the distribution of music. The RIAA could really care less what independent artists do with their music, how they distribute it, or what they turn it in to. The lawsuit is about stopping copyright violations only on music that the RIAA holds the rights to.

One would not expect this to have to be explained to a Ph.D. candidate by an undergraduate dropout.

anonymous · July 22, 2003 - 02:36 EST #2
My comment is simple and to the point. Most of the web pages online that have music are shared files, making any file basically like me letting a friend borrow a CD. A copyright is (from my own experience) getting your name put to something, but that doesn't mean that no one can listen to it any way they want. I can see the point if people are making profit off other people's work, but this is just people getting upset because people are sharing. When I was little, I was told its always better to share what you have. I don't mind sharing my music and if other people feel the same way, then what is the problem? Music is entertainment, that's all. If it has to be this way, then who is to say that radios are right for playing music on the radio. It's not theirs (copyrighted) but they are letting everyone listen to it. There is no difference. I am just tired of the music industry being so greedy. It's not like they aren't making money. All the people who share files are just being smart and not wasting their money so they can get a new house or new car. If you take away the choice of people sharing what they have, you are taking away our freedom. No one is doing anything wrong here, just basically being friendly. If we aren't selling it, then no harm done. If the music industry isn't making money off it, get over it. It's a free country and I can share anything I want.
Lee Bennett (ATPM Staff) · July 26, 2003 - 14:43 EST #3
It's a shame Mr. Anonymous, above, will probably never read this response and even a bigger shame that someone has to hide behind anonymity to make such comments.

It is your type who the RIAA will be targeting. First of all, you're right that the music industry is certainly making plenty of money, but we're just stooping to their level if we keep pirating music. Yes, the RIAA is pretty bull-headed in their restrictions, but that doesn't automatically make it right for them to have only sold one copy of a CD that 50 people benefit from. It doesn't matter how much you type trying to justify's still stealing. Bottom line. You have acquired something for free that someone is trying to make money from. Do you walk into a grocery store, look at a can of soup, and say, "Campbell's charges way too much for their soup, so I should just take some for free." Of course not--that's ridiculous. Your choice is, pay them anyway, or don't buy it. The same goes for music. You can choose to stop patronizing the music industry.

Don't bother posting further drivel about why it's okay to music. does not condone or support it.
meurig davies · September 30, 2006 - 15:50 EST #4
By paying a royalty to the actual artist for copying mp3s, as in imusic, it's possible to avoid the sleepless nights of anxiety over taking the money from an artist. After all the quality is much less than the 44kh of CD about 10% of CD, the best way despite the dificulty of creating a perfect LP setup No vibration, interference etc and changing the record every 500 plays and the stylus regularly etc. It has tones deyond the range of CDs and this is closely followed by adio tape. Studio tapes did form the origial recording until recently and their quality is the penulimate.

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