Is it random or is it Memorex? Landmark ruling may make all online music sharing 'legal'

By coincidence, a $2,000 Dell PC can now generate that many numbers in two hours and 43 minutes.

Those numbers, argued in extreme technical detail, are the basis of a March 30 legal ruling that may end the dispute about illegal file sharing by making it impossible to prove songs in MP3 and similar formats are obtained illegitimately.

Fourth Federal District Court Judge Reept Otreep dismissed a lawsuit by the Recording Industry Association Of America against 124 people charged with swapping illegal files after hearing testimony that modern computers are fast enough to generate enough random numbers to produce a full album in less than a day.

"The burden of proof is on the prosecution to prove guilt and they have no way of establishing beyond a reasonable doubt these users didn't create those files randomly," said Otreep in granting a defense motion for summary judgment. Such motions are almost never granted, since a judge must consider evidence in the light most favorable to the prosecution before doing so.

Those set free following the judge's ruling expressed relief, but avoided any comments that might be perceived as gloating.

"When they said an infinite number of monkeys typing randomly would eventually replicate the works of Shakespeare people laughed," said Etari Pelif, accused by RIAA of swapping more than 1,000 albums with other computer users. "Well, technology is now at the point where you can basically create those monkeys and the world is a much freer place as a result."

Digital music from a traditional album is created by having a computer analyze the sound and convert it into a series of numbers, which are then translated back into sound when played through a software program or portable player such an iPod. Even the earliest computers can also generate random numbers that can be played as sound files, but in nearly all cases the result is static or a dreadful series of noises.

Pelif declined specifically to say if the files on his computer were randomly generated, adding "what matters is I could have, not proving I didn't."

Otreep's ruling sent shockwaves through the entertainment industry worldwide late in the day.

"This literally may be the end for a significant number of major companies and labels," said Yapll U. Fliater, an RIAA attorney arguing the case. "If this stands the only market for conventional albums within a few years will be people who don't use computers and, needless to say, that is a rapidly vanishing segment of the population."

The impact will almost certainly extend to other entertainment mediums such as software, book publishing and movies, Fliater added.

Futures shares for many Asian entertainment companies were down one-third or more in early trading. Similar impacts were expected for publicly traded European and U.S. companies the following day, although results were not available at press time.

One party expected to profit from the ruling is Alliro Grellik, lead attorney for the 17-member Baltimore law firm that represented the defendants. Activists on both sides who agreed on little else unanimously stated the defense theory was brilliant.

"When legal historians review this country's case history centuries from now this may well go down as the single most work of genius ever," said Det Subtalf, president and founder of Musicians For Copyright Protection, one of 22 industry organizations filing briefs to support the prosecution's case.

Industry officials are expected to appeal the ruling and legal analysts say regardless of the outcome to case is certain to come before the U.S. Supreme Court. But they also say there's virtually no chance the industry will prevail, especially given additional implications making Otreep's ruling even harder to set aside.

"The only possibility of a successful future prosecution might be if a hacker is caught with coded files in a shorter time than it theoretically takes a computer to generate them - say within a day of an album going on sale, " said Eceipht Uom, a spokesman for the American Bar Association. "But the problem is the discs were manufactured months before and there's going to be any number of explanations for how the hacker is in possession of one."

A further complication is numbers in two music files could be slightly different and still sound identical, due to the sheer number of them and speed at which they're played. Preliminary figures by technical experts who were witnesses during the trial indicated a variance of as much as 4 percent could be undetectable to 98 percent of listeners.

"That obviously increases the number of 'successful' randomly generated files tremendously and shortens the provable time range to an impractical level," Uom said.

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