Digital diversion

The music industry's legal maneuverings come to light at a Seattle law conference.

FROM GEORGE LUCAS threatening Internet service providers that host unauthorized Star Wars home pages to George W. Bush Jr. going after a satirical Web site aimed at his presidential campaign (see related story) to record companies hunting down digital music pirates, the weapon of choice is always copyright law.

This is particularly true of corporations, and even more particularly true of record-industry corporations.

Such was the message delivered at the May 14 University of Washington sponsored Fourth Annual Entertainment Law Conference, hosted by Microsoft's Craig E. Schuman and attended by some 40 attorneys and students. One of the more interesting speakers was attorney Thomas R. Leavens of Platinum Entertainment Inc., a Chicago-based online record company that in April signed on as a supporting partner in the launch of Microsoft's Windows Media Player 4.0. Leavens listed his competitors and cohorts in an effort to illustrate how the different types of music sites—from e-commerce outlets to MP3 clearinghouses—raise myriad legal and copyright questions simply by their existence.

As he went along, an amused Leavens noted that many of the companies he'd mentioned—some of whom give away content for free—had recently gone public or had filed for an initial public offering. Margaret Chon, a Seattle University law professor who addressed the conference just prior to Leavens, predicts that this get-rich-quick attitude among insiders will further dissipate what's left of the Web's free content. "Everyone's in it for the money," she says. "There is a land grab going on, but it's not visible to people on the street because it's not real land."

The homesteading documents—to extend Chon's analogy—include the Digital Millennium Copyright Act (DMCA), passed last year by Congress, which updates existing copyright laws to adapt them for the Internet. The DMCA applies to digital distribution of copyrighted works, such as songs, films, and videos, that are the bread and butter not only of artists but—more to the point—of multinational corporations.

The Recording Industry Association of America (RIAA), which represents the five major record companies, has expressed particular interest in the DMCA. The trade group, which for the past year and a half has tried to find an alternative to the popular and easily distributed—and not so easy to profit from—sound files known as MP3s, lobbied strenuously for copyright-law changes that would favor the industry over musicians, consumers, and various digital revolutionaries. Now the DMCA's anti-circumvention provisions seem squarely aimed at MP3, which has become the de facto standard for distribution. These provisions limit the access that an individual has to a copyrighted work, thereby making the law more supportive of digital copyright holders than even those in the print world. "The DMCA is an industry piece of legislation," says Chon. "It allows [companies] to make more money. It gives them more leverage in the digital world."

Chon believes that it's in the public interest not to protect corporate copyright but to keep the Internet a bastion of free-flowing information and ideas—a view shared by the online free-speech advocacy group the Electronic Frontier Foundation. Last week, the EFF issued a statement calling on the record industry to create an open standard for distribution. The request is implicitly directed at the Secure Digital Music Initiative, the effort by record company and high-tech industry leaders who have been meeting regularly to set standards for digital distribution. They appear to be favoring a closed format, which the DMCA's anti-circumvention provisions would protect.

"Society is making important choices about digital audio and free expression," the EFF statement reads. "In building an architecture for digital audio, participants have a responsibility to build an open architecture explicitly designed to permit and encourage a full flowering of individual expression, not a closed design that limits an individual's effective capabilities to be any less than his or her full legal rights."

Increasingly, the independent companies that could fight for these ideals have been swept up in the Internet's heady financial atmosphere. Leavens', for instance, which Leavens touted at the conference as the largest independent record company in the United States (an insinuation that, unlike offline indies, it's not tied in with a major's distribution network), is hardly untainted by corporate alliances. It not only supports Microsoft's Media Player, but it's part of's affiliate program.

Corporate control of digital distribution seems to be inexorably advancing on various fronts, in various ways. Leavens says that by the end of the month, Music Maker, a site that charges users to create custom CDs from a catalog of songs, could become the first of its kind to team up with a major label. Sites such as this usually feature either obscure or unimpressive selections, but a major's catalog would make it the first to feature a wide offering of well-known songs. "This will be a big breakthrough," Leavens says. "No major has entered into this type of agreement." And even, whose founder, Michael Robertson, has been one of open standard's staunchest defenders, has joined with the majors lately, signing up to sponsor Warner Bros. distributed Alanis Morissette's summer tour.

Six months ago, it seemed that the record industry was looking at years of damage control as it tried to combat the spread of MP3. Now the wheeling-and-dealing climate, coupled with changes in copyright law, appears to have put the industry back in control. The clearest sign yet that the record companies are winning is the apparent backpedaling by Diamond Multi-Media, the company that manufactures the portable MP3 player Rio, in its fight with RIAA. The RIAA sued Diamond over the Rio last year, alleging that the palm-sized portable player violated the 1992 Audio Home Recording Act, which outlawed the making of digital audio players that copy a sound document the way a photocopier duplicates a print document. A federal judge refused to make Diamond pull its product from the shelves, but the case has been ongoing. Diamond executives have since joined in the Secure Digital Music Initiative talks and introduced subsequent versions of the Rio with security software. Leavens hints that the company may be close to settling its case with the RIAA, and Chon says that it's no coincidence that Diamond is backing down just as Microsoft, Casio, Toshiba, and the various music sites aligned with these companies are preparing to enter the market with portable players and content of their own. These competitors may install closed systems that would comply with the DMCA provisions, then play the legal card against Diamond. This, Chon suggests, would trump the free distribution of audio on the Web. "If Diamond says we'll play with the big boys, that's it. The game's over," she says. Sic transit revolution.

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