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Anytime a new technology can cause a lawsuit to prevent its being marketed and sold, it raises hopes that something really cool or revolutionary is on the way. With the evolving music format, MP3, and more specifically portable MP3 players, it may be a little too soon to expect greatness, but the technology is certain to shake things up in the music industry and in the courtroom. Often in the case of Internet technologies, courts and laws are behind the curve, particularly when it comes to intellectual property rights.
Developed a few years ago by a German group at the Fraunhofer Gesellschaft Research Institute, MP3 is a technology which compresses audio signals into one-twelfth their size, making it possible to send CD-quality songs in several minutes on a 28.8 modem and even faster with a T-1 connection. The files are playable on computers and on portable players.
Rather than purchasing CDs at so-called "brick and mortar" stores, or even ordering on-line, consumers can download MP3 files and songs on demand. The problem, say critics of the format, is that it is possible to make nearly perfect copies of music, thus allowing free music to pop up all over the net -- which robs performers of royalties and record companies of revenue. The most celebrated cases came about when the most recent albums by Pearl Jam and KISS were put up on web sites in their entirety. These sites claimed to have enabled the download of almost 15,000 files, with the Pearl Jam site taking advantage of the large bandwidth of a university. [The higher the bandwidth, the more simultaneous messages that can be carried on a wire or through the air. The Recording Institute of America takes college MP3 bootlegging so seriously that it has a site (www.soundbyting.com) which specifically targets students, attempting to inform them about the illegalities of most MP3s.] Even though there are thousands of legal MP3s on the Web, the vast majority are illicit reproductions.
This is the reason that the Recording Institute (www.riaa.com) filed suit against Diamond Multimedia to prevent it from selling its portable MP3 player called Rio. About the size of a pager, the $199 Rio allows users to download up to an hour of music from a computer onto a memory card. Rather than going after individual MP3 sites or people on newsgroups, the Recording Institute has chosen Diamond to be the test case. Claiming that the device violates the 1992 Audio Home Recording Act which forces manufacturers of digital recording devices to pay royalties to the music industry to offset loss of revenue stemming from the ease-of-piracy digital recording allows, the Recording Institute took Diamond to court. (Samsung has also recently jumped into the fray with its own comparably priced portable player, but the Rio will be available first.)
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In a preliminary move, Federal Judge Audrey B. Collins issued a 10-day restraining order against Diamond, forcing it to stop production of the Rio, though she wondered if "technology has moved ahead of the law." Then on October 26, Collins reversed herself, stating that the Recording Institute did not demonstrate a causal relationship between the Rio and unauthorized copying. Furthermore, she found that the Rio did not violate the Audio Home Recording Act.
In response to the Recording Institute's lawsuit, Diamond Multimedia says the law doesn't apply to the Rio, which is only a playback device, not an encoder. The Rio has no moving parts and can only play music that has already been downloaded onto a computer.
Its proponents assert that the MP3 format allows artists without record contracts to have their work heard by a wider audience. For instance, MP3.com (www.mp3.com) had 2.5 million visitors in September; on its site there are no illegal MP3s, just mostly files from unsigned artists. The sheer number of people and artists using the format shows that the Recording Institute has a fight on its hands if its ultimate goal is to eradicate MP3s; the most popular Windows MP3 player is WinAmp (a shareware) which has had 5 million downloads.
With an encoder and a computer's CD drive, songs can be "ripped"(recorded) into "skins" (tracks) and either put up on a web site, e-mailed to friends or stored on the computer for later playback. That's what worries the record industry; nearly perfect copies can be made from copies, ad nauseum.
So how easy to use is this technology? Using a 56K modem and a 266MHz Windows machine with 64 MB RAM, I went to www.MP3.com, where I linked to www.musicmatch.com and downloaded a player/encoder. The process from downloading to listening to the first song took a little more than an hour, with individual songs taking from 20 to 30 painstaking minutes. Certainly not the threat to artist royalties I had expected, but once the song is downloaded, it can be saved on a hard drive or disc, which is what gives some validity to the Recording Institute's fears. Poking around on newsgroups and search engines I discovered that almost every popular artist has MP3s available, though not necessarily entire albums.
How hard is it to stop web sites that post illegal MP3s? Not very, actually. Doing a search at www.internic.net of any domain name (the words after the www.) will give the owner and phone number of the web site. Because it is a felony under the 1997 No Electronic Theft Act to make illegal MP3s, all a record company would need to do is call and inform the owner of the domain (who is usually unaware that someone is using their server for such purposes) that they are breaking the law and have the offending pages removed. Geffen Records has actually done this, and it is unclear why the Recording Institute is going after Diamond Multimedia instead of the people who are doing the illegal bootlegging.
Still, if people embrace the MP3 format on a wide-scale basis, it will be difficult to stop them. The larger question is what role digital distribution will have in the record industry. Ultimately it will be consumers who decide if MP3 will remain a viable format.
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