Judge hides from technology in MP3.com decision

It's difficult to imagine a decision more steeped in technological ignorance than Wednesday's $250 million judgment against MP3.com.

From his ruling, it's tough to know whether U.S. District Judge Jed Rakoff has ever even used a computer. Certainly, though, any attempts he made to gain so much as a basic grasp of the technological issues at stake in this case were feeble and half-hearted at best.

Rakoff completely bought into the arguments of the Universal Music Group, which sued San Diego-based MP3.com over the start-up's digital dubbing service, My.MP3.com.

Unlike Napster, Gnutella and other file-swapping services and programs that let individuals share music freely, My.MP3.com merely provided an alternate method for you to listen to CDs you already owned. MP3.com's savvy technology used their server to check that you really did own the CD – you had to insert it into your CD-ROM drive before you could gain access to the digital version of the disc in their archive.

This is fully in keeping with a Supreme Court decision that granted consumers the basic right to make backup copies of any soft materials they own. From LPs to books to computer games, under this Supreme Court ruling you have the right to make a backup in case the original becomes unusable either through accident or in the course of normal use.

And of course, for years there have been music dubbing services that made their money by transferring customers' records (whether LPs or 45s) to cassette tape. Not a lucrative business, to be sure (most folks who were heavily into music would have had their own cassette recorder), but one that is recognized as perfectly legal and in no way a violation of copyright law.

For instance, no one would suggest that Ed's (fictional) Dubbing Service at the corner of Fifth and Main was "selling" the Bruce Springsteen songs that were transferred from your "Born in the USA" LP to cassette tape. What Ed was selling was a service – his time and expertise at making you a quality backup copy of your LP.

Why, then, does Judge Rakoff see MP3.com "selling" music when they're providing the exact same service in a new medium?

Rakoff also forgets that copyright law (like patent law) was created as a method to help society as a whole enjoy the fruits of its most creative members by offering financial incentives for those creative types to create. It was never intended as a cudgel to be used by massive corporations to wield against new technology. It is hard to see how Rakoff's application of copyright law in any way benefits society as a whole.

MP3.com has vowed to appeal, and we should all hope they do. Rakoff's decision violates the above-mentioned Supreme Court decision on personal copying, displays gross ignorance about the technology in question, and shows a disturbing deference to the power of money.