Pay the Digital Piper or Die!

Hilary Rosen, president and CEO of the Recording Industry Association of America (RIAA), must feel like Sisyphus playing an endless game of "Whack-A-Mole." Her job recently has been to patrol the digital world for music copyright violators, especially those pesky pirate MP3 websites on the Internet. It seems that each time they find and eradicate a horde of copyright violators, hundreds more pop up faster than you can say "information wants to be free."

For folks like Rosen, it's bad enough that we have legions of college students zipping copies of untethered MP3 music files around the world to each other's computers. What happens when those same MP3s hop off of the desktop and get portable, as in MP3 walkmen (or walkwomen?). That's where the RIAA starts to get nervous, and, like a dog backed into a corner, bares its teeth.

In a move it claims will protect the creative content of the music industry, the RIAA, joined by the Alliance of Artists and Recording Companies, filed a complaint last week seeking a preliminary and permanent injunction against San Jose-based Diamond Multimedia's announced portable $199 MP3 device. The RIAA charges that Diamond's portable MP3 recording machine, due at the end of October and called the Rio, violates the Audio Home Recording Act (AHRA), and in doing so "encourages consumers to infringe the rights of artists by trafficking in unlicensed music recordings on the Internet."

In a telephone press conference on October 9, Rosen stated that "it is very rare we have to take this kind of action, so we don't take it lightly. Our concern with MP3 is not the technology, but how the technology is being used. The development of MP3 recording devices is going to escalate the files online and turn those files into portable music. . . . Our concern again is not with the technology, but how it's used."

Rosen sees that technology used as a playback machine for illegally obtained MP3 files. "I sincerely doubt that there would be a market for the portable MP3 devices but for the thousands and thousands of illegal songs available on the Internet. Diamond Multimedia's device does not comply with the AHRA because it is not registered with the copyright office, it doesn't incorporate SCMS, and it doesn't pay royalties, which are all requirements of the Audio Home Recording Act," she stated.

Throughout the conference call, Rosen claimed that the RIAA was standing up for the thousands of "creative artists" whose work is pilfered by the easy distribution of digital data. Critics have often charged that the RIAA actually represents the interests of music publishers, record labels, and other big-business copyright holders who generally profit from the control of music rights---not always musicians, who often end up on the short end of the licensing stick. In fact, if you look at a list of RIAA members, you'll find every major record label out there, with nary a musician in the bunch. Regardless, money is spent to create, record, and distribute music, and without safeguards in place, Rosen feels that the industry we know would grind to a halt.

Under the 1992 Audio Home Recording Act, the manufacturers, importers, and distributors of digital audio recording devices receive a limited immunity from liability for copyright infringement. In exchange, manufacturers are required to do two things: First, they must pay a modest royalty to partially compensate the artists, composers, musicians, publishers, and record companies who are affected by unauthorized copying. Second, they are required to incorporate into their devices a Serial Copyright Management System (SCMS) to prevent the unauthorized making of second-generation copies.

According to an RIAA statement, "MP3 recording devices are governed by this law (the AHRA), and [at this time] are clearly in violation of it." The AHRA covers any device "which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use. Rio reproduces MP3 music files from a computer hard drive to the memory of the MP3 recorder. This is the primary purpose for which it was designed and is marketed. Its marketing material confirms that it is directed at music-related uses."

"It was our hope that Diamond Multimedia would be an active participant in working with us to develop a solution that adheres to the law and protects the fundamental rights of all artists," said Rosen. "To our disappointment, Diamond declined to postpone its product launch so that we could constructively address the issues, leaving us with no other option than to take legal action to prevent distribution of these devices. It's a rare occasion that we have to take measures of this nature. Inter-industry dialog would be much more productive."

After her opening remarks, Rosen took questions from reporters. "Can't you just play these recordings back on your computer?" one asked, hinting that portable computers were obviously an expensive version of what Rio could become. Another asked what the RIAA's position is on CD-R burners, especially now that they cost less than $300. The RIAA's head lawyer, Cary Sherman, jumped in, stating that "the AHRA does not cover devices that are not primarily designed for copying music, and so general-purpose CD-R devices might not be covered." He also stated that "we know that there are consumer electronics companies that are very interested in developing flash memory devices for this market. Many of them have been working with record companies in a way that respects the rights of record companies and protects the content."

Is this merely muscle-flexing on the RIAA's part, or are the creative musical artists of the world actually under siege? Probably a little of both, but, as Rosen states,"It behooves anyone who is interested in music distribution online to take steps now to respect copyrights." If they don't, she'll likely be whacking moles for all eternity.