Archiving music, cont.

In the last post, I focused more on the possible benefits of the site Anywhere.FM than on the legal implications of digital music storage. This needs to be discussed separate from the streaming issues I touched on last time.

There are certainly lots (103,000,00 hits on Google) of digital music storage websites out there. From my cursory research, it seems that most of these sites do offer streaming as a lure to users, but that this feature is almost always provided solely to the owner of the account. This means that the storage service is advertised as a way for the user to have constant access to his or her digital music collection; it does not ostensibly facilitate filesharing, as granting someone access to the files would mean turning over the login and password to the account, essentially giving full control of the data to another party. This of course is not the case with Anywhere.FM, where only read permissions are granted to “guests” who stream from a user’s page. Under no circumstances could such a guest delete, rename, or add files to a user’s account.

It’s often been the mere act of uploading which has incriminated otherwise promising music storage services in the past. The famous MP3.com tried to offer such a service, but was quickly shut down by the major labels, who cried foul at that augury of their failure and frailty. The same man responsible for MP3.com has since bounced back with a new project called MP3Tunes, which offers storage, streaming, syncing with a desktop collection, and even DRM-free tracks for 88 cents a piece.

But even keeping the service confined to one user doesn’t at all make it legal in the eyes of the major labels. Very recently, the head of litigation for Sony BMG was quoted as saying that even ripping a CD to your computer constituted copyright infringement:

Gabriel [lead counsel for the record labels] asked if it was wrong for consumers to make copies of music which they have purchased, even just one copy. Pariser replied, “When an individual makes a copy of a song for himself, I suppose we can say he stole a song.” Making “a copy” of a purchased song is just “a nice way of saying ’steals just one copy’,” she said.

Read more

This is of course madness, as there’s already a legal precedent delineating a user’s rights to fair use under copyright law. Included among these rights is the right of the user to make unlimited copies of purchased media, provided that the copies are for personal use only. To quote the a statement by the Electronic Frontier Foundation on what is thought to qualify as legal under fair use:

• Space-shifting or format-shifting - that is, taking content you own in one format and putting it into another format, for personal, non-commercial use. For instance, “ripping” an audio CD (that is, making an MP3-format version of an audio CD that you already own) is considered fair use by many lawyers, based on the 1984 Betamax decision and the 1999 Rio MP3 player decision (RIAA v. Diamond Multimedia, 180 F. 3d 1072, 1079, 9th Circ. 1999.)
• Making a personal back-up copy of content you own - for instance, burning a copy of an audio CD you own.

Read more

I’ve referenced EFF before the the original wording of the law, because the text of the law was codified on April 15, 1976, I believe, and so is obviously a little outdated. All the same, here’s the fair use clause as it stands within the text of the law:

§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Read more

Thus it seems pretty freaking clear that digital copies for personal use is legal under present copyright law. Nonetheless, MP3.com’s locker feature never made it. The CEO of MP3.com, Michael Robertson, eventually sold the company and website to Vivendi Universal for around $400 million, netting a cool $100 million for himself. Of course, he practically had to abandoned the site under legal pressure. But as stated above, he’s launched a new project with the same goals, and by this point, he must have the friends to make it happen. I can’t imagine this character could ever again fly under the radar of the major labels.

Poking around on Robertson’s site, I came across a very recent article on his failure to launch another commercial-oriented MP3 distribution site. The name? AnywhereCD. Robertson admits he had misread the industry, and provided a service that no one really wanted–especially considering Apple had just announced DRM-free tracks from EMI. So it failed, but I can’t help but suspect that the Anywhere.FM team had been watching very closely, maybe even learning more from Robertson’s past experiences than he himself had.

I think the most valuable thing they’ve learned is that if you want to change a law, break it. That’s always the first step.

Find out more about The Faceless on MySpace, Last.fm, or Sumerian Records. Tour dates are listed on all three pages.