Why MP3.com Never Appealed: The Legal System Made It Impossible

from the not-how-it's-supposed-to-work dept

It’s been nearly six years since a judge ruled that Michael Robertson’s MP3.com violated copyrights with its My.Mp3.com service. For those of you too busy focused on your bubble-era dot coms at the time, the service had digitized thousands of CDs for people to listen to. However, to keep it all legal (they thought), you had to own a copy of the actual CD to get access to the digitized streaming version. Putting that CD into your CD-ROM drive would “register” it to your account, and then you could listen to the CD streaming from MP3.com. Also, if you bought a CD through their website, you could immediately listen to the streaming version while you waited for the physical CD to be delivered. There were ways that crafty folks could get around the limitations — but for the most part, this was a really useful service that actually (gasp!) made buying CDs a lot more valuable without the recording industry having to do a damn thing. So, of course, the RIAA had to destroy it with a lawsuit. In Tim Lee’s recent paper, he wondered why MP3.com never appealed the original ruling, as you could make a good case that the judge misunderstood what was really going on. Michael Robertson has now emailed Lee to explain the legal quirks for the lack of an appeal. Apparently, in order to appeal, the company would have needed to put up a bond for the potential damages. Since the RIAA could push for statutory damages, MP3.com was looking at getting someone to put up a bond for potentially tens of billions of dollars — making it effectively impossible. Randomly… in looking over our own historical links on MP3.com, I came across a related story that I had totally forgotten about. After MP3.com lost the case, the company apparently sued its own law firm for having given them the assurance that the program was legal. MP3.com apparently felt this was “legal malpractice.” Does anyone know what ever happened to that case?

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Comments on “Why MP3.com Never Appealed: The Legal System Made It Impossible”

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James Utley says:

Recording songs

I have over the years and I am 46 now, but I have recorded songs from my friends, Tv, Radio, Cable TV, and most recently XM radio.

I had no problem with doing this because once I hear the song and it was public I could record it.

No one said a thing while I was recording these songs on my reel to reel or my cassetes and sharing these songs with my friends.

Now with the internet I guess the artist are getting pissed because they are not getting all of the millions of dollars that they believe they deserve.

I do respect the artist but the problem is that they release their songs on public radio and once that is done You can record and share with friends.

You can do this and it is legal as long as it is not done for a profit.

This is my humble opinion

Mike says:

Re: Recording songs

heh, yeah but they couldn’t track your illegal distribution until the internet came along, trust me the RIAA went after THOUSANDS of people for giving away copies of licensed recordings, I did a show in Toronto and I sold copies of mixtapes afterwards and I had 200 copies confiscated and paid $4500 in fines…

Anonymous Coward says:

What does it matter, nobody’s making any real music anymore anyways. If it’s not genre based formulaic psuedo “pop” targeting the 9-15 year old crowd, it’s non existant. Do people even play instruments anymore?

Hey, I got a great idea, lets pop quiz all the top artists and see what percentage can read the music they claim to produce… A trebble cleff, wha?

Anything worth listening to was written in the baroque period. And that’s free.

Dom says:

Re: Re:

Not exactly true. If you stay clear of mainstream music, you can hit a goldmine of artists whose music doesn’t interest the big record labels, but is amazing in it’s quality. And yes, they all write, read and play their own music. Saying anything worth listening to was written in the baroque period is a little narrow minded, in my opinion.

Anonymous Coward says:

Re: Re: Re:

Thank you for that. Anyone who thinks that “music sucks these days” obviously doesn’t care enough about music to go out and find what doesn’t suck. They actually mean “the music that is pumped in through the mainstream media sucks, and their revenue model sucks.” If you don’t like the Pop stuff and you don’t like how they do business…then just don’t concern yourself with them. Are you so much a slave to Pop media that you can’t define your own avenues for finding music you like? If we can all stop complaining about artists we don’t like who are doing things we don’t agree with, we can start focusing on promoting the artists we enjoy which will in turn promote the way they do business instead.

Eric Jackson says:

Re: Re: yeah

i agree….there are tons of local bands around me that always throw concerts with 5$ admission and put their own music out on the net for free and just knowing that people like their stuff is enough satasfaction for them…they dont get greedy and charge 70$ for one concert ticket and 15$ for a cd (thats just robbery….a blank cd is like 1$)

dead_red_eyes says:

Re: Re: Re: yeah

that’s just awful that some of you think that Musicians are chargning too much for shows, CD’s ….

What about your BS glory boys who play sports and get paid 9 million+ a year, and still bitch that they don’t have enough food to put on the table.

I’m a musician and I think P2P is all good. But Artists still deserve support and money for the hard work that they creat and share with everyone. $15 is a super reasonable price for CD or vinyl. Anyone who says no is probably broke … or just ignorant.

Geeger says:

Re: Re: Re:2 yeah

I never said anything about professional athletes. I agree that they’re spoiled, but $15 dollars for a CD is outrageous. If you can give me a valid reason why I should pay $15 for something that I can get for 1/5 that price, then maybe I’ll consider buying a CD or two. But until some one can give me that reason, I’m sticking with what works for me and my wallet….because according to your labels, I’m either ‘broke… or just ignorant’.

Jimmy Bear Pearson (user link) says:

Re: Re: Re:

Thanks for the comment – I enjoyed the smile.

Some of us even understand coda, transposition, mode, tenor clef, well-tempered and non-tempered instruments, meaningful dissonance, the quality of not having every single sound cleaned and perfected with Pro Tools (intonation is a bear, but sometimes, a little “lack of intonation” gives a “live” quality to the recording), singing from the heart, etc.

I enjoy music from very many periods, including the baroque.. But I do take the time to listen to music from a great variety of eras and styles – there’s always something to learn. Heard some Buddy Guy lately? Stevie Ray Vaughan? Johnny Cash? John Cage?

But back to the subject…

I think the idea of listening to one’s music before the CD arrives at one’s doorstep was a cool idea – not dissimilar to being able to download software for which one has paid, but has not yet physically arrived at the doorstep. Also, being able to stream one’s music library from anywhere in the world (at an airport and want to hear that new CD you just bought?) is very cool. it is too bad mp3.com could not survive – innovation sometimes gets trampled for the wrong reasons…

There has to be a way that the RIAA and the consumer can be friends and get along.

? says:

Re: Snob?!

“Anything worth listening to was written in the baroque period. And that’s free.”

Nope, you gotta buy the score, or buy the recordings from the modern artists. It is only FREE if you don’t donate to your local NPR association and if you don’t pay your taxes which help fund “art that nobody wants to pay for” budgets.

Interesting that you nock broque for pop as there are a ton of simulararities between modern pop and broque music. But since you are a “musical snob” you don’t see that because while “music snobs” may know a lot about music, and their periods, they don’t really understand music theory and therefore, end up saying stupid things.

Nathan says:

Re: Re:

Even that’s not so cut and dry. Most American orchestras can’t play a large portion of orchestral music these days because the scores are no longer available for purchase. Only works that were already purchased and in the orchestras library are on the schedule. Copyright fights over some amazing Romantic and post-Romantic composers is essentially robbing most of our country of performances of Gershwin, Copland, Prokofiev, Shostakovich, Stravinsky, Sibelius, and Ravel. Works that should have been public domain by now, but are now locked back up by continued copyright extensions. Community orchestras cannot afford to pay thousands in performance rights or for expensive new scores. This isn’t an issue of do we have access to Britney Spears or Mickey Mouse. It’s an issue of do we have access to Romeo & Juliet, Finlandia, or Alexander Nevsky.

Jimmy Bear Pearson (user link) says:

Re: Re: Re:

Nathan, I share your view.

There is also the issue of copyright of arrangement. It is becoming ever more difficult to find non-copyrighted arrangments of things that are functionally in the public domain (like Christmas music from the early 1800s, or Beethoven, for that matter). I know that arrangement is hard work, and good arrangements should be rewarded, but if one wants to play a tune (without royalties, that is) from 1750, one has to jump through hoops to make sure that one is grabbing an arrangement that is out of copyright.

Thomason says:

No bond can be an option

A losing party does not have to get a bond, as a prerequisite to an appeal. The reason for the bond is to stop the winning party from executing on their money judgment. So, if MP3 appealed w/out a bond, then RIAA could’ve seized the assets of MP3, while the appeal was pending. Also, a money judgment has interest added to it, so a $1B judgment runs up a hefty amount of interest each day that the appeal is pending.

Just One Guy says:

This time the RIAA had a case

I’m sorry to disagree this time, but the RIAA had a case.

Copyright laws say that not only you have to own a legal copy of the media, but you have to keep on owning it for as long as you care to listen to the music.

mp3.com only required the CD to be physically present once in the computer to register it in their database (the beam-it service). Present in any computer. And then you could go on listening to the music for as long as you cared. So you could buy a CD, register it with them, bring it back to the shop as unwanted. Or borrow a CD from a friend and register it. Or rent a CD and register it. Or visit a friend, listen to one of his CD, and register it with your account from his computer. It is much easier, and faster, and more secretive, than ripping the CD on your own.

All in all, there were so many situations were you could exploit the “Beam-it” service that the judge had a good case to work on.

belg4mit (user link) says:

Re: Not enough

If that was their argument, an easy solution would be to randomly (every few weeks) ask for the media to presented agan. If you didn’t have it on you, the disc goes on probation and you can listen to it X times before you re-auth. A bit of an incovenience but not much.

And how the hell is this more secretive than ripping the CD?

Overcast says:


Yeah, it’s nice that the RIAA has to lobby power in Washington to basically get the consumer to buy the same crap over and over and over and over again.

Luckily, 100 years ago – the horse and buggy industry didn’t have this kind of lobby power in Washington, else we would have likely been still riding in carrages.

Way to go RIAA!! Squash that Innovation!!

Rich Miranda says:

Re: Cheers!!

[i]Yeah, it’s nice that the RIAA has to lobby power in Washington to basically get the consumer to buy the same crap over and over and over and over again.[/i]

[b]To avoid ever buying the same song twice,[/b] buy it once for $1 from Napster or MSN Music, digitally convert the DRM’d WMA into a high-quality, non-DRM’d mp3, store it on your HD [i]and[/i] your external HD.

If you do the above you will have the song until you die (or your house burns down), then you can pass it on to your children.

Anonymous Coward says:

“Anything worth listening to was written in the baroque period. And that’s free.”

The notations that allow someone to recreate the music may be free, but I believe if you were to try and offer modern Kiri Takanawa recordings of Baroque music for download, the RIAA would still come after you since the performance is itself copywritten.

Course, as has been pointed out, the opinion of someone claiming that no music worth listening to has been written/recorded in a few hundred years is suspect anyway. MTV, Sony and Clear Channel (despite their best efforts) are not the sole sources of music in the world. Go to a club, listen to indies, at least make an effort, before you bitch.

Rich Miranda says:

Yeah, it’s nice that the RIAA has to lobby power in Washington to basically get the consumer to buy the same crap over and over and over and over again.

To avoid ever buying the same song twice, buy it once for $1 from Napster or MSN Music, digitally convert the DRM’d WMA into a high-quality, non-DRM’d mp3, store it on your HD and your external HD.

If you do the above you will have the song until you die (or your house burns down), then you can pass it on to your children.

Term says:

Music my way…..

I don’t get how some ppl turn their pc’s into music jukeboxes. I have a nice stereo and buy all my CD’s and its cheaper than any online music store. Using a music store like BMG helps cut even more costs.

Sure I have bought a few samples online with some free pepsi caps etc but nothing after that. Too much can go wrong corrupt downloaded etc. If I want to listen off the PC, just use winamp…:)

I don’t agree with the RIAA and what they have done, and I wish we could be back to the way of recording radio without watching over our backs, (recorded a lot when I was a kid) However times have changed and people are greedy. I also don’t agree with pirating music etc and what really bugs me right now is when I buy a DVD and the first thing they advertise is a commercial saying don’t steal and pirate DVDs, hello, I just bought the damn thing!! and they are preaching to me, after I buy them, its kinda like preaching to the wrong crowd.

Well that is just my two cents, mp3.com was squashed IMO, but big leaguers who controlled the RIAA to do what they wanted to do. Peace out.

Geeger says:

Re: To term.

While I do agree with you that the RIAA was wrong in this case, I have to disagree with the cost of buying CD’s over purchasing music online. Why in the world would I pay anywhere from $15-$17 when I can get the same music online for somewhere between $1-$5 per album? (Roughly the equivalent of $.02 per MB). It’s not DRM’d, and can be encoded anyway you want (WMA, MP3, etc…). And If I want it on disc, I’ll just buy blank one’s and burn it. The only thing I forego in the process is the middleman (local retailer, record label, etc.).—

Term says:

Re: Re: To term....to Greeger

Well when I order my music from BMG for instance, I usually pay around 3 bucks per cd and online music service like itunes is around 99 cents per song and with a typical cd costing about 13 bucks for 13 songs that is about the same as itunes charging the 99 cents. However I agree with you, if you can find the right music service and not those Russian sites that claim to sell 99 cent whole albums then I cannot see how one can buy a whole album for 1 buck.

Not saying its untrue, but I have not found anything as of yet. 🙂

Anonymous Coward says:

Re: Re: by Bob

I know I don’t have the right to “back-up” rented movies, so I don’t even atempt to.

I swear, the new “You wouldn’t steal a car, why would you steal this movie” type of anti-piracy mini movies encourages me to steal the movie. At least the last movie I watched I could “next chapter” through it. that wasn’t so bad.

SuperPope (user link) says:


MP3.com was my favorite dot-com era startup, because over the course of a year they paid me like $1,500 simply because people listened — for free — to my crappy loop-based music on their website. I don’t see how they made a cent from it.

I miss those glory days of the late ’90s, when web companies didn’t have business models, they just threw venture capital at whoever they could find and believed it would magically return to them tenfold…

Kitrah says:


It has been shown that recording music for a private purpose is well within the rights of “fair use” that a person has. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

This means that it is perfectly okay to copy a copyrighted work from a public performance (radio or television) as long as the copying is for the private use of the consumer. This does not include giving the copy to all your friends, and it does not include playing the copyrighted work for a public audience.

While the laws of copyright are somewhat suspect when it comes to new technology, there are historically based reasons for them. Copyright law in the United States is based on the Statute of Anne (1710) from England. This statute was created to protect authors from the over-reaching of publishing companies. The Constitution grants the federal government the power to create copyright and patent law for the benefit of the author and the benefit of society. (US Const. art. I, sec. 8, cl. 8).

The idea is that an author, while seeking to benefit society, is not working solely for that. An author needs to be compensated for his work. There are few consumers who like the latest version of the Copyright Law, however, the intent is to foster creativity while allowing for the economic benefit of the author.

When a person puts their hard work and effort into a work, they own it.

Nyle says:

Re: Generally.

Absolutely 100% correct. However, our founding fathers also lived in the era of the Guilds who controller virtually all protected works indefinetely. Being the clever kinda guys that they were, our Founding Fathers realized that permanently copyrighting a work did not protect the original artist it protected the Guild and didn’t benefit society. Which is why our original copyright laws had expiration as a main concept. The idea was to allow the work to be copyrighted long enough to serve the author and his wife/widow but not to permanently server the Guild/Corporation.

Unfortunately, the Corporations and Sonny Bono had more pull with Congress then the average American did and this “little” fact of our copyright law has been ursurped back by the Guilds. Thus ensuring that the amount of public domain music remains small and defeating the wonderful ideals that our Founding Fathers tried to foster in our fledgling new democracy.

Thanks to Sonny, RIAA and MPAA we will continue to pay for Elvis’ songs long after he and his wife are no longer shuffling this mortal coil. As opposed to being able to enjoy his music as part of the Public Domain for the overall Public good.

Long live the almighty dollar and the Corporations taking the power back from the masses.

Did I mention that we just let them get away with it too? Why not vote with your dollars and only buy music from alternative open sources?

Of course, it’s not like me posting on this forum is going to make a difference. Is it?

Anonymous Coward says:

Re: Re: Generally.

However, our founding fathers also lived in the era of the Guilds who controller virtually all protected works indefinetely

No, they didn’t. The government claims a monopoly on the right to use force. So without government support, ultimately there was no way for the guilds to enforce copyright. So they influenced the government to pass copyright laws that could be enforced with government force. Many people at the time thought this was a bad thing and so the copyright interests were only initially able to get enforced copyright for a limited time. They have since been working to eliminate those initial limits.

Nyle says:

Re: Re: Re: Generally.

Yes, they did up until the invention of the printing press when new laws were passed. (The first copyright laws.) Which attempted to limit the possesion of said monopolies and protect the rights of the authors. Now in the U.S. we have given Guilds/Corporations the right to indefinetely own protected works again how does this protect the authors?

Once again I’ll say our Founding Fathers were trying to both protect the authors rights while providing for the public good by having protected works only be allowed to be copyrighted for a limited time.

The Guilds/printers’ monopolies didn’t want copyright law because they controlled all protected works and their duplications and distribution. (Sounds sort of like the RIAA and MPAA doesn’t it?) They wanted to maintain control and with the advent of the printing press the English government started to establish new rules to protect all parties involved as well as the public good.

I am not a total expert on English law but there is enough information online from legitamate sources to back this basic premise up.

From my understanding our Founding Father’s wanted to continue the good ideas that England had in copyright law and also make sure that copyrights had an expiration data so that the public domain would grow.

The force of law is implied but the early English laws did no most certainly serve the interests of the monopolies of the time.

Kitrah says:

Re: Re: Re:2 Generally.

For the record:

In 1556, the Stationer’s Company (in the UK) was established by royal decree for the purpose of checking the spread of the Protestant Reformation. This was accomplished by concentrating the whole printing business into the hands of the few. The Crown’s grant allowed the stationer to have full and exclusive printing and publishing rights and basically eviscerated the rights of the authors. After a considerable time, the grant gradually lifted and independent publishers crowded into the mix. In response to the obviously illegal acts of the pirate independent publishers, the Company sought Parliament assistance. This lead to the first copyright statute, The Statute of Anne (1710).

The “Founding Fathers” put the Intellectual Property Clause into the Constitution to protect against the monopolies (granted by the government) that existed prior to Anne. However, the colonies (with the exception of two) had all enacted intellectual property rights statutes prior to both the Constitution and the first Copyright Act. The original term was to lsat 14 years.

Today, the limit is life of the author +70 years, or 95 years for works for hire, corporate authorship, pseudonymous works and anonymous works. It’s not unlimited, though it is certainly long.

It is incorrect to say that the “Founding Fathers” lived in an era in which the Guilds “controlle[d] virtually all protected works indefinetely.” The historical facts show that while that may have been true in the 1500s, it was certainly not the case in the late 1700s.

Brandon says:

“What does it matter, nobody’s making any real music anymore anyways. If it’s not genre based formulaic psuedo “pop” targeting the 9-15 year old crowd, it’s non existant. Do people even play instruments anymore?”

Perhaps it’s time for you to delve into a new genre…

I think what you need is alittle Metal, and not the mainstream crap either, perhaps some Necrophagist. yea…

anonymous coward says:

michael robertson is an idiot. the only intelligent thing he EVER did was buy the mp3.com URL. After that, he had no idea how to build a profitable business in the music space. i met with him and his top execs right as mp3.com was getting some traffic and he all but begged my company to help them figure out a way to monetize the site. he should be flipping burgers somewhere.

Damien Hunter says:

It would seem to me that we walk a very thin fine line between copyright infringement and the lack of it (as far as the music industry is concerned). A hypothetical situation of this is as follows:

I live in a dorm building with several hundred other students. I have a pretty loud stereo system. If I play my music at max volume (I also live above the only entrance to the building, so nobody can really get in or out without hearing it, does that mean I am making a public performance of copyrighted music and therefore infringing on copyright?

I bet most people who read this will agree, it would be counted as a public performance, but I probably won’t get in trouble legally because no one would really care. It just seems to me that the reason for a law is that it should always be enforced. So maybe the current copyright law needs an overhaul to work out the ambiguities. It’s just a thought.

PS. I have no opinion on the modern music flaming I see going on. I listen to modern alternative rock and rap and I see it as an industrialized form of music, in the same way that your chairs were probably produced by mass production, and your car was assembled on an assembly line. It’s faster, cheaper, but ultimately you lose some of the quality.


Damien Hunter

Anonymous Coward says:

Re: Re:

I bet most people who read this will agree, it would be counted as a public performance, but I probably won’t get in trouble legally because no one would really care.

That’s what some people using P2P used to think, too. You may be surprised to be notified that you are on the wrong of a lawsuit someday. How much would you pay to settle?

Ponderous says:

RE: This time the RIAA had a case

All in all, there were so many situations were you could exploit the “Beam-it” service that the judge had a good case to work on.

I disagree. The recent Supreme Court decision on the role of inducement in the legality of peer-to-peer file sharing services shows that so long as a service has a legal use, and the service is not advertised as encouraging the illegal use, than the burden for misuse of the service (given due diligence on the service owners part) is on the user. All Beam-It would have to do is have something in their service agreement that spells out to not misuse the service in this way.

Granted, the P2P SCOTUS judgement came after the Beam-It verdict, but it was a well-supported conclusion. The potential for misuse a service does not invalidate the legal right to use a service.

Otherwise video rental services would never have existed. After all, you can illegally copy the movie when you have it at home and keep it! There goes Netflix.

las21978 says:

random thought

okay we have the riaa tell college students to quit college inorder to pay their fines. okay just something worng with that whole idea. and the go after everyone it seems. we all know that the recording artist makes next to nothing from album sales. they make all or most of their money on tour. so whats happens to the money collected by the riaa? i say it goes to the record lables. to be honest the labels should be the ones getting sued for highway rubbery.

TripHammer says:


I see the main issue here being the primacy of the ‘legal’ entity instead the the artistic or musical entity. Case in point:

The Saloon in North Beach San Fran has been the site of historically important shows. Most of these shows were recorded and are in the possesion of the owner Myron Mu (fantastic guy btw). None of this content can be released due to the wrangling of the lawyers.

This is not about the artist getting his due. Its about being able to hear the best music available in all realms without ‘music corporations’ or ‘law offices’ locking up access.

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