Subscription Music's Curious Silence

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Their reluctance is understandable. Since programs such as Replay Music operate locally on the users computer -- recording whatever is going through a soundcard as opposed to going out and pulling streams directly off of, say, Napster's servers -- there's little the subscription music services can legally do to stop them.

"I don't think [streaming services] like us," says Tom Mayes, chief operating office for Applian Technologies, the parent company of Replay Music. "They get pressured from the [record labels]. The streaming services have sent us letters asking that we don't use their name [to tout compatibility] on our site."

To get around this concern on its website, Replay touts its compatibility with "Rh------" and "Music M----" -- shorthand for Rhapsody and MusicMatch

Mayes says he's also had conversations with one service whose employees confess "they love us. Obviously, they can't condone us or promote us, but people buy Replay Music and then go out and subscribe" to streaming music plans.

One music service representative admits that the company receives pressure from the record labels to do something about the stream capturing programs, but admits that it's a tough battle to fight.

"We're unable to control what users do with the audio once it leaves our service, whether that means recording the sound as it travels from sound card to speakers or placing an old fashioned tape-recorder in front of the speakers to record it as analog sound," says the anonymous representative.

According to Mayes, Replay operates legally for two reasons: the 1984 Supreme Court decision which made VCRs legal and the 1981 Audio Home Recording Act, which made it legal for consumers to record media for personal use.

The argument: what's the difference between paying $10 per month for HBO and recording The Sopranos, and paying $10 a month for Napster and recording an album, provided you don't start burning CDs for all your friends and uploading the material on file sharing services?

"We don't really know if it's legal," says Jonathan Zittrain, faculty co-director for the Berkman Center for Internet & Society at Harvard. "It's possible that making a copy of something that's copy protected is fair use. Or it might be viewed as a circumvention device, which would run afoul of the DMCA."

Zittrain notes that the upcoming Grokster Supreme Court case should help clarify the matter.

Jonathan Lamy, spokesman for the RIAA, wouldn't comment on Replay specifically, but said "the RIAA remain[s] concerned about any products or services that encourage users to illegally transform broadcasts or webcasts into permanent music libraries."

Replay's Mayes says he hasn't yet been contacted by the RIAA, but worries that phone call might soon be coming.

"Everything is legal until it's tested, right?" asks Mayes. "Will we ever get tested on that? I hope not. We don't have deep pockets. The RIAA has deep pockets."