Mookie Tenembaum is everything you want in an entrepreneur. He's as focused as a spotlight, as knowledgeable as a scholar and as engaging -- at least on the phone -- as one imagines Steve Jobs to be on his best days. And if this Argentine native is right, he may soon have as much of an impact on digital music as Mr. Jobs has had.

A self-professed inventor, Mr. Tenembaum has created HotRecorder for Media, a software package that records digital audio from other digital audio. It started as a product to record conversations on Internet telephone systems (computer-based VoIP). Then, as Mr. Tenembaum saw the market progress, he had his team program the product to take files from Apple's iTunes or Yahoo! Music files and turn them into MP3 files.

Illegal? Not according to Mr. Tenembaum.

Having received his law degree in Israel, Mr. Tenembaum is well versed in the Digital Millennium Copyright Act. But he defers to his legal team as the people who really understand it.

In Mr. Tenembaum's view, the so-called Sony Betamax decision specifies that an individual can make copies -- as long as he is conforming to "fair use," the concept that says you can use a copy yourself, but can't sell it or give it to others. He asserts that the more recent Grokster court decision supports his claim. In that decision, the justices overwhelmingly decided that Grokster was goading users to violate copyrights, and therefore was guilty of aiding copyright infringement.

David Gurwin, entertainment and technology attorney at Buchanan Ingersoll, agrees that the Digital Millennium Copyright Act should not override the rights of individuals under fair use, and suggests that one of the real issues here is the contract between the user and the music service from which he buys or rents the music.

In order to stop users from stealing music, the music services put in place strong software (known as digital rights management) to keep people from pirating digital copies. However, the software can interfere with use of music that is allowed by the copyright act and other copyright laws.

Mr. Tenembaum asserts that his HotRecorder doesn't interfere with the protection software, an abuse that is illegal based on the copyright act. His software doesn't de-encrypt the file; it simply records the music as it is being played through the computer -- the way a tape recorder can record sound from a record. The difference is that the audio stays in the digital form throughout, thereby creating a high quality duplication of the original.

The user would still need to conform to the fair use tenets -- where the music is used by the only original purchaser and not resold. If a user obtains the song by rental (such as from Napster or Yahoo!'s subscription service), he legally would be obligated to delete it at the end of the rental period. In the meantime, though, it would give the user the ability to listen to a song purchased from the iTunes Music Store on a non-iPod digital music player -- something that Apple's software doesn't allow.

Mr. Tenembaum asserts that Apple doesn't say in its license agreement that the user must use an iPod.

Mr. Gurwin, though, says the agreement limits the use to Apple-authorized devices. His mantra: "Simply because you can do something, doesn't mean you may do it."

Next week: Mr. Gurwin's interpretation of the law and the impact on users of products such as Mr. Tenembaum's HotRecorder.