The Recording Industry Association of America (RIAA) has won one of the first rounds in its effort to stamp out arbitrary copying of digital music. Is this a bad omen for music distributors (both infringers and non-infringers) everywhere?
The RIAA had an easy target, a sitting duck, in the form of mp3.com. When mp3.com made copies of over 45,000 albums, where the copyrights predominantly rested with the RIAA, and placed them in their database, it was clearly challenging conventionally held views about copyright law and fair use (albeit in an extremely dramatic fashion). The RIAA dissented with mp3.com and filed suit, and Judge Jed Rakoff, U.S. District Judge for the Southern District of New York, has sided with the Recording Industry.
This, however, is just the beginning of the fight. Judge Rakoff had the opportunity to interpret the law and the concept of fair use in novel ways but chose not to, for possibly several reasons. The main issue is that the Judge's are pretty much tied and it is up to courts with much greater authority to determine how copyright law and fair use provisions should be (if at all) molded to fit the transmission of digital music.
Practically, mp3.com will probably have to agree to the Judge's order and end up removing the offending digital files for now. Chances are that the company will continue to thrive, either because of slap-in-the-wrist type of sanctions, or because it reaches a settlement with the RIAA (who do recognise how a service like my.mp3.com can be monopolised to generate more profit). If mp3.com does not settle, I am confident it will prevail in the long term. There is some reason to believe that any judgement against mp3.com will not be too harsh if the reasoning of Arnie Lerma vs. Scientology cases are followed (where it was held that the infringement was not wilful since the infringer was convinced it was fair use). In any event, I applaud mp3.com's actions: without a David, Goliath would never have been beaten.
However, that only touches the surface of the problems the industry faces with online music distributors. mp3.com launched a service that has a lot of uses and helps those who wish to infringe copyright laws only in a limited manner. Clones of Napster, another digital music innovation that helps infringe copyrights in a much more radical fashion, are routinely popping up. Even Napster is a sitting duck and may well lose their battle against the RIAA, but innovations like Gnutella and the more general "Freenet" project derive their power from a source that is greater than the governments of the world combined. These programs are distributed using the free software paradigm and enforcing their spread and use is a logistic nightmare.
All of these services have been extremely popular among the masses, which clearly indicates what the market wants and the ethical, philosophical and pragmatic views of the people. If the masses didn't want it, then innovations like Napster or the my.mp3.com services would fail in the marketplace. Therefore, this back and forth legal armchair philosophising misses the fundamental points: Laws are meant to serve everyone in society, and it is society that ultimately decides what laws are. Even if inane politicians and groups with misguided self-interest with deep pockets help enact laws that abridge consumer freedom, ultimately people will vote with their feet (and people always have) when situations come to a head. In the case of digital downloads, it is clear what the majority of the populace want. Any business model, any scheme that is created to make profit (such as limited-time monopolies) must take into account the freedoms of everyone involved. When music can be arbitrarily copied without existing in a tangible medium, the consumer freedoms become paramount. In the end, because that is the path of least resistance, the infringers will win.