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MP3.COM DECISION: HERE COMES THE JUDGE(MENT)
Rakoff’s Opinion Elaborates Summary Finding Of Infringement

Judge Jed Rakoff of the U.S. District Court, Southern District of New York today provided some of the basis for his 4/28 summary judgment against MP3.com. The RIAA had filed suit against the netco, alleging the database that forms the basis of its My.MP3.com service infringed multiple copyrights held by record labels the RIAA represents and calling its claims of fair use "indefensible".

Rakoff commenced by noting, "The complex marvels of cyberspatial communication may create difficult legal issues; but not in this case." He then opined that the streamed recordings from the company's database are de facto reproductions offered for profit, a "presumptive" case of copyright violation under the Copyright Act of 1976.

"In actuality, defendant is re-playing for the subscribers converted versions of [copyrighted sound recordings]," Rakoff went on. "Defendant's only challenge to plaintiffs' prima face [sic] case of infringement is the suggestion, buried in a footnote in its opposition papers, that its music computer files are not in fact ‘reproductions' of plaintiffs' copyrighted works within the meaning of the Copyright Act."

But said files are admittedly identical to the human ear for all intents and purposes, the opinion adds, and so do "not qualify for exclusion from coverage of the Act."

Rakoff also made note that the 1976 Act differentiates between use for commercial purposes and "nonprofit educational purposes." Though MP3.com comes up short on that score as well, some observers believe that non-commercial versions of Napster-like file-sharing applications could argue that the free distribution of music files in a not-for-profit setting constitutes the latter purpose (not unlike a library) and therefore doesn't constitute infringement.

"While subscribers to My.MP3.com are not currently charged a fee," reasoned the Judge, "defendant seeks to attract a sufficiently large subscription base to draw advertising and otherwise make a profit." He also dismissed the simple "space-shifting" argument offered by MP3.com, claiming, "This is simply another way of saying that the unauthorized copies are being retransmitted." Rakoff, in other words, found no grounds for a "transformation" of the copyrighted material that would fall under the category of a new (rather than an infringing) use. He cited a broadcast case (Infinity vs. Kirkwood) as precedent in this matter.

Perhaps most devastating to MP3.com's case in this round is Rakoff's contention that the netco's claims of helping the industry "—though dressed in the garb of an expert's ‘opinion' (that, on inspection, consists almost entirely of speculative and conclusory statements)—are unpersuasive. Any allegedly positive impact of defendant's activities on plaintiff's prior market in no way frees defendant to usurp a further market that directly derives from reproduction of the plaintiffs' copyrighted works."

"Stripped to its essence," concluded Rakoff, "defendant's ‘consumer protection' argument amounts to nothing more than a bald claim that defendant should be able to misappropriate plaintiffs' property simply because there is a consumer demand for it. This hardly appeals to the conscience of equity." He added MP3.com's fair use defense was "indefensible and must be denied as a matter of law."

But hey, a round of big fat checks made out to the majors could change all that, so stay tuned.

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