t was January when MP3.com copied tens of thousands of compact discs into a database to create a service that lets consumers listen to copies of music they already own from any computer connected to the Internet. And almost ever since, the company has argued that making those copies is legal under existing copyright law.
That argument has not made much headway in court, though. A federal judge ruled in April that MP3.com had infringed copyrights of the five major recording labels, and last month ruled that the company had done so willfully. Facing the grim prospect of paying more than $100 million in damages to the Universal Music Group, plus about $80 million in settlements with the four other record companies, MP3.com did the obvious: It hired a high-powered lobbyist.
The lobbyist is Billy Pitts, MP3's new vice president for legislative affairs, a former senior strategist for the Walt Disney Company with 20 years experience on Capitol Hill. He achieved fast results. Last week a Democratic representative from Virginia, Rick Boucher, and three Republican colleagues, introduced the Music Owners' Listening Rights Act of 2000. If passed, it would legalize the MP3.com service.
The proposed legislation is written so narrowly that it almost seems tailored to serve the specific interests of MP3.com. And no one thinks that it will pass before Congress recesses. But the bill is significant because, for the first time in this year's digital music wars, it raises the question of what is right rather than what is legal.
"What matters is whether new technologies are consistent with the theory of the copyright laws, not just consistent with the details of the copyright law," Mr. Boucher said in an interview. "The law should not stand in the way of an entirely legitimate technology that provides consumer convenience without costing the record companies anything."
Just what MP3.com's service, called My.MP3.com, has actually cost the recording companies has been unclear. Judge Jed S. Rakoff noted that the level of damages he awarded Universal, the only one of the labels to go to trial, was lower than it might otherwise have been because the company had made no effort to show that it had lost sales as a result of My.MP3.com.
The service allows a user to insert a compact disc briefly into a computer to prove ownership of the CD, then subsequently listen to a digital copy of the music already stored on MP3.com's computer, without having to go to the trouble of converting his or her own music into computer files. Some other services, like one provided by a company called myplay Inc., also allow users to listen to their own music from an online locker. But these other services require them to transfer the music onto a computer hard drive, convert it to a special file and upload it themselves.
For its part, MP3.com was found guilty of copying some 80,000 CD's onto its own computers for a purpose that did not fall under the "fair use" exemptions in current copyright law. But MP3.com argues that all it did was make it far easier for music fans without much technological skill to do what the Internet makes possible: have access to their own music, wherever they are.
Should My.MP3.com be legal? Or, as the recording industry and trade groups representing other copyright holders argued in a letter circulated among members of Congress last week, is the service simply an effort by MP3.com to "build a for-profit business using someone else's property"?
Regardless of the answer, what is novel about Representative Boucher's proposal is that the question might be debated somewhere other than in a courtroom — assuming that the legislation is reintroduced in January. That would be a departure from the litigious wrangling that has tended to dominate the discourse on how culture will be manufactured and used in the digital age.
Today, for instance, the debate moves to the United States Court of Appeals for the Ninth Circuit, where a three-judge panel is to decide whether Napster Inc. contributed to copyright infringement. Napster, of course, is the company whose file-sharing software has enabled millions of users to get copies of music they did not necessarily pay for.
The company's star lawyer, David Boies, who successfully argued the Justice Department's antitrust case against Microsoft last year, has lots of arguments why Napster is blameless. What if he's right? What if existing copyright law did not envision the ability to copy on the mass scale made possible by the Internet? Does that mean that such copying should be allowed, or should the law be modified?
Other coming court cases include the movie industry's lawsuit against Scour, a company that abets the trading of music and movies over the Internet. Another pending case is the appeal of a movie industry lawsuit against a Web site for publishing a program that cracked the copy-protection security code on DVD movie discs.
On the surface, the DVD case was as cut- and-dried as the My.MP3.com case. The movie studios had asked for, and received from Congress in the 1998 Digital Millennium Copyright Act, a statute that banned the distribution of such "anti-circumvention devices."
"They're trying to take away what Congress gave us," a lawyer for the motion picture industry said of the DVD case. "They can't do that."
But at a time when technology is evolving so rapidly and the stakes are so high over who can exercise how much control over copyrighted works, there may be cause for Congress to look more closely at the rights it has doled out in the past, and how those rights are being applied now.
Hilary B. Rosen, president of the Recording Industry Association of America, says that the Copyright Act is a "strict liability" law that prohibits all copying, except in cases that fall under the fair use doctrine. The copying of music that is common among friends, she told the Senate Judiciary Committee last summer, has traditionally been tolerated by musicians, who have chosen only to pursue those who try to profit from piracy.
Perhaps there is no place for such tolerance at a time when copying music has been made easy. Or maybe, if the music industry is no longer so tolerant, a new, legally enforceable standard should be considered.
Copyright experts say that perhaps more than any other statute, the Copyright Act has been updated over the years to ensure that the balance between copyright holders and copyright users remains fair to both. The Digital Millennium Copyright Act is simply the most recent example.
Ms. Rosen maintained in an interview that digital copyright issues are moving too fast for Congress to deal with.
"Next year I might have a totally different view," she said. "I might tell you Congress has to act, depending on how these cases get decided and if our rights get diminished. But I have a hard time believing this is going to get resolved anywhere but in the marketplace."
