Two Snaps Up and a Rewind

Bob Cringely's PBS column proposes a "legal" way to create "Snapster" or the "Son of Napster." The idea is to have a publicly traded company buy one copy each of thousands upon thousands of CDs, and then allow each shareholder—in her capacity as part-owner of each CD—to download a backup or personal copy of each album under fair use laws.

This is actually sort of interesting, not because it stands a vegan's chance in Austria of ever happening—whatever the precedents he cites, there's just no way any court is going to interpret the law in a way that effectively guts copyright—but because it does draw attention to the ways that what we thought were "bright lines" in law become eroded in a realm where, as Lawrence Lessig points out, any use you make of the data you own involves, technically speaking, making a copy.

So, for instance, say I copy some tracks from my hard drive to a portable MP3 player to take with me on the bus. Pretty clearly within the bounds of fair use. What if my roommate borrows the player instead, so he can listen to it on the bus while I'm listening to the same tracks at home? Hard to believe that whether or not I'm infringing depends on which of us picks up the player… especially if we split the cost of the original CD, maybe own it jointly. Normally, this would be a strictly speculative sort of question, but as the RIAA goes after ever smaller file-traders, courts may end up having to decide odd questions like this.