Pick up a CD off the shelf in the store. Pay for it. Take it home and unwrap it. What have you just bought?
That is, did you buy that plastic platter, or the music on it?
The law and current practice in the music business hold that the disc itself is what counts, not its contents. So if you lose or scratch the CD, the store you bought it at will (politely) tell you to go pound sand, then offer to sell you a new copy.
"There is a distinction between ownership of a physical copy of a thing and the copyright to the stuff embodied in it," says David Wittenstein, a partner with Dow, Lohnes and Albertson in Washington. Legally, for instance, if you want a backup copy of an album you own, you have to copy your own disc, not somebody else's - even if the net effect, in terms of CDs purchased and copies made, is the same either way.
Different facts apply if you buy the music online, then download it to your computer's hard drive. The music never takes on any physical form - CD, MiniDisc, tape, vinyl, eight-track, whatever - existing solely as a series of bytes that move from one storage device, across various wires and cables, to another storage device, your computer's hard drive.
So what happens then? Digitalmusic publishers and retailers are conducting some interesting experiments to find out.
The idea behind these ventures is to treat music more like computer software. The principle behind most software sales is that you buy a licence to use the program. You want to install the program on additional computers? Just buy more serial numbers, not more CD-ROMs.
To be clear, the results of selling music like software could be atrocious - many software licences place absurd restrictions on customers. And there are already too many pay-per-listen digital-music proposals out there for my taste.
But two examples suggest ways that publishers and retailers could expand listeners' choices online.
EMusic (the website formerly known as GoodNoise) lets its customers download a song they've purchased up to three times, no questions asked - whether they lost the original in a hard-drive crash or they just want to listen to it on a friend's computer. "You can do it today, or you can come back a year from now and do it," says Steve Grady, eMusic's vice-president for marketing.
The site sells both individual songs and entire albums in MP3 format, which makes another change from traditional practice possible: "If you buy a single from us, then come back and want to buy the album . . . we're not going to charge you for the full album," Grady says. "You never pay for the same piece of music twice."
MP3.com takes this concept a step further, allowing users of its free My.MP3.com program to listen to their CDs on any Internet-connected computer. You stick the CD in your computer's CDROM drive, use a little program called Beam-It to identify the disc and send its title back to the site, and - assuming MP3.com has the disc in its archive - you can then log onto the site from wherever you are and listen to a webcast of the music on that disc. My.MP3.com also allows purchasers of CDs at three online stores to listen to the music they've bought immediately, instead of having to wait for the disc to show up in the mail. MP3.com president Michael Robertson says: "We believe that consumers buying a CD get the right to listen to it anytime, anywhere, on any device, without having to pay for that music again."
EMusic's Grady says that eMusic has considered offering a service like My.MP3.com but is still looking at the "legal wrinkles".
With good reason - the Recording Industry Association of America is suing MP3.com, arguing that the website has no right to run a for-profit database of copyrighted music.
But the RIAA doesn't disagree with the listen-anywhere idea - its objection is to who can provide that service. "Getting instant access to what you've bought is interesting," says Hilary Rosen, the association's president. "The issue is whether they're allowed to make that unilateral decision."
So maybe it's Sony Music or Dischord Records that should be doing this, not MP3.com. I'm still interested. If I could access my music from any Web-connected computer - and if I could count on my listening habits not being auctioned off to telemarketers - I'd probably sign up. And why should the record labels mind? I've already bought the songs - shouldn't these guys be in the music business, not the CD-pressing business?
This approach also has the benefit of being the way in which plenty of people collect music. Not long ago, for example, I needed to replace a scratchy tape copy of an album. I had a friend make a copy from his CD. Was what I did legal? No. Was it ethical? Arguably, yes.
Fortunately, regardless of what the law says, and regardless of how many lawsuits get thrown around between corporations, the music industry recognises there are limits to what is practical to enforce. "They'll pursue real bootleggers to the end of the earth," says lawyer, David Wittenstein. "But there are questions, beyond legal questions, about how vigorously they should hunt down their customers."