Illegal Rhythms

The law tries to catch up with technology at the Computer and Internet Law Institute

I am one of the "rhythmically impaired" people you never hear about when "impaired" groups are looking for legal privileges. We tried lobbying for special seating in the front rows at concerts, but were denied. We threw the bands off when we tried to keep time with the music.

Even after that blow from the music industry and legal system, I decided to go to the Computer and Internet Law Institute, sponsored by the University of Southern California Law School. This year the focus was on "Online Music" as well as e-commerce transactions, patents, trademarks, and more. In past years, I have brought a lawyer friend to translate "legal speak" for me and this year, I brought a friend who has also been in the music business for a decade or two.

LEGAL NOTES

An interesting mix of people made up the panel concerning online music - Harvey Geller of Universal Music Group, Fred Koenigsberg of ASCAP sitting just inches away from Hank Barry of Napster Inc., and David Nimmer and Lois Scali of Irell & Manella LLP.

The first discussions cleared up the differences between the "Two Faces of Music" (Musical Works and Sound Recordings), how each is compensated, and how the law protects, or doesn't protect, each level of the two with current and possible future copyright legislation. There appears to be much debate as to how and what the current laws cover. This confusion goes back to the old cassette tape and VCR debates, where the technology is really ahead of the law.

The panel also discussed the recent MP3.com Inc. and Napster cases, of course. The MP3.com case was fairly easy to resolve because MP3.com chose to store the songs on its server, while the Napster case is much fuzzier. There has never been much debate over consumers' rights to trade among their friends, but how many friends? Do you really have to "know" these friends, or just know where you can access their computer? What happens when a radio station does simultaneous transmissions (both offline and online) of identical content? What is fair use? Be prepared for similar debates between the film and television industries and online companies as access to higher bandwidth grows.

BUNNY TROUBLES

Institute participants also discussed trademarks and their use online. This panel featured James Bramson of America Online Inc. and Michelle A. Kaiser of Playboy Enterprises International Inc. Playboy has an ongoing, organized campaign against unauthorized use of its trademarked names and logos. The company spends a huge amount of time looking for stolen artwork and trademark symbols on the Internet - and it's good at it. The only case Playboy has recently lost was to a former Playmate over the use of the word Playmate on her Web site. Playboy has even fought with Netscape and Excite over the keyword "Playboy," because the two companies had tried to switch to "keyword bidding" and put the top position for "Playboy" up for grabs.

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In addition to online music and trademarks, discussions also focused on patent laws, privacy laws, and antitrust laws. If any conclusion can be drawn from the institute, it's that technology is often ahead of the law, causing huge legal headaches. I hope they will be in sync one day, but unfortunately, I think the odds of my getting in sync with the music when I dance may be better.

Joe Celko [www.celko.com or 71062.1056@compuserve.com] works at Trilogy Software and his opinions are not necessarily those of his employers. He is the author of Joe Celko's SQL for Smarties: Advanced SQL Programming (Morgan Kaufmann Publishers, 1999).