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The lowdown on music downloading: The verdict is still out on some legal issues
Sunday, March 12, 2000 By Tracy Collins, Post-Gazette Staff Writer
What are your legal rights to music? It depends on whom you ask, because the courts haven't finished with the cases yet.
The recording industry has maintained that if the letter of the law is followed, consumers would be lim, ited in their rights to make any copies of their music -- even recording workout or road-trip tapes from their compact discs. The industry also acknowledges that this is nearly impossible to enforce, so it has concentrated its energies elsewhere
The Recording Industry Association of America has challenged in federal court a consumer's right to take a track from a CD he or she owns and translate it into MP3 form. But the group lost that case in June 1999 before the Ninth U.S. Circuit Court of Appeals in San Francisco. The court's ruling in the RIAA's suit against Diamond Multimedia maintained that the Doctrine of Fair Use, which is part of U.S. copyright law, protects consumers who make MP3 files from pre-recorded music they own, as long as files are for their own noncommercial use. The court ruled, in effect, that once you buy that music, you're free to do with it what you wish as long as it is for your personal use. This ruling still can be challenged before the U.S. Supreme Court.
Where the water turns murky is in the question of what you do with your MP3. The RIAA hasn't gone hard after this just because they want to prevent you from listening to that Sting track on your portable MP3 player. Sting's record company isn't yet offering his songs for sale in MP3 form, but it will sometime soon, and it would rather you buy that track separately, even if you already own the CD. That's why its legal efforts are aimed at shutting down the ability to record MP3, or convert CD tracks to that format. It doesn't want the format to go away, for it will be a future cash cow if harnessed just right.
The recording industry also is aware of human nature. Joe Computerhead might be within his legal right -- so far -- to make an MP3 for home use out of, say, "Mambo No. 5." But what about when he puts that MP3 up on the family Web page so that Grandma in Des Moines can download the song and shimmy to Lou Bega? And, once it's out there in that form, what's to stop anyone who knows Joe's Web address from downloading Bega's big hit?
The law, for one, because the courts have made clear that if it isn't for your personal use, you can't distribute it. And you can't post it at a place where others can get it. The RIAA resents that consumers treat what it considers to be clearly written copyright law with as much disdain as it does those federal warnings not to remove tags from your mattress.
Right now, it is considered legal to download MP3 from established commercial sites that have a licensing agreement with the artist and/or record company. Examples of above-board sites are MP3.com or CDbaby.com.
It's also possible, right now, to go to a major search engine such as Lycos and find an area dedicated to finding MP3 on the Web. Few of these are what anyone would consider legal MP3 sites, but there are literally thousands of them. According to Bruce Fries, author of "The MP3 and Internet Audio Handbook," there's a surefire way to tell you're at an illegal site: If it starts not with www but with ftp (file transfer protocol). As soon as you click on that link, you begin downloading the music, with no Web page to identify where you are. No legal MP3 site is going to miss the opportunity to sell you something or to get your computer fingerprints for future marketing purposes.
On a recent search -- just for research purposes, mind you -- we typed in "Natalie Merchant" and "MP3." We were directed to 15 sites, and among those were seven ftp sites that would allow us to download her "Tigerlily" or "Ophelia" discs in their entirety, in MP3 form, at no cost.
So far, that's illegal. Running the same test two weeks later, five of those ftp sites had disappeared, obviously shut down by the RIAA's aggressive policing efforts, which have targeted not just the person illegally posting the music but also the Internet service provider who hosts that person's page.
Of course, we could convert Merchant discs out of our own CD collection in less than an hour. So far, that's legal.
Just don't ask us for a copy.
Stay tuned.
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