Just when it seemed safe for the Net to declare victory. Just when the AOL Time Warner deal made it seem like that the big boys finally got it, along comes the Recording Industry Association of America to show how far off the big boys still are.

I'm talking about the suit filed this week by the RIAA against MP3.Com over MP3.Com's "Instant Listening" service.

What the MP3.COM offering does is this. Say you already own a copy of Aretha Franklin's great first Atlantic album "I Never Loved a Man the Way I Love You," but you want to be able to listen to it on any one of your PC's at the office or on the road. The MP3.Com service allows you to place a copy of the CD in your PC's CD-ROM drive. MP3.Com's servers will then identify that you have the disk and thereafter make its music available to you from MP3.Com digital library.

According to the RIAA, the trade organization for the recorded music biz, MP3.Com is violating member copyrights eight ways to Sunday but building its own digital library of copyrighted content.

There are two sets of issues regarding the looming battle between MP3.Com and the RIAA -- the first set is legal, the second is conceptual. I do want to address the legal issues, which are hardly a slam dunk for MP3.Com, but first I want to look at the conceptual issues which leave the record industry's prime trade group in the dust.

Since the advent of the long-playing album in the early 1950s, the recorded music industry has been built around the idea of marketing products. First it was concept albums -- "Come Fly with Me," for example, when Sinatra cut songs about distant places. Then, inexorably over the years, the product and merchandising focus mushroomed. Today the product focus in the music business is at its pinnacle. Every new release has a full scale merchandising and marketing plan, with art direction and packaging sometime driving content to such an extent that entire acts (The Backstreet Boys, etc.) are created as merchandisable products. Furthermore, each new format pushed by the record companies enable the creation of new products. You liked "Who's Next" on LP but you'll love it on audio cassette, CD, Minidisc, DVD-A, or whatever, goes the familiar sales pitch.

Unfortunately for the record industry, music content as a product business is peaking just as an entirely new paradigm for the consumption of content is being driven forward by consumer adoption of the Internet.

Here's what I mean. Recently I was thinking about tenor sax giant Coleman Hawkins. Hawkins made his first important recordings as a sideman in Fletcher Henderson's band in the 1920s. He spent several years in Europe recording with pick-up groups. Then returned to the states and recorded frequently as a leader and a sideman. So, in order to listen to Hawkins' classic solos from 1926 through 1946, I had to pull out a dozen LPs and CD which were released under various artists' names on many different labels. Now, image if my entire recorded music collection existed in a granular, indexed database. I could pull up a sortable listing of all the recordings that featured Hawkins between 1926 and 1946; select the ones I wanted to listen; then dump the lot onto a rewritable optical disk. Or I could load everything onto a central server and access it from any device I own now and in the future. That's the way I want to consume my music content, and that's the way I will consume my music content in the future, whether the record companies like it or not.

Today the record companies dramatically lag even the once-backward book business in creating digital databases in order to make cover art and track listings available to online retailers. While the growth of Amazon.com has forced booksellers to build these kinds of databases, the only meaningful music database of this type today belongs to third party provider Muze, a Silicon Alley company, which charges retailers up to 2.5 percent on transactions to use its database.

At its heart, this is what the battle over "Instant Listening" is about -- a true paradigm shift in the music business away from a product-based economy and towards a database-driven one, a service business that will reduce the recorded music industry's ability to milk consumers with newer formats and repackaging of content every few years.

Think about it. Today, when you buy an LP, tape or CD, in essence you're buying a perpetual license to use the content stored thereon in any device of your choosing. You're even allowed to make duplicates of the content for your own personal use. With digital technology there's no reason you shouldn't be able to store the data you've licensed in a central server and recall it at any time on any device anywhere in the world forever.

There should be no need for a consumer or an Internet service provider to pay a licensing fee to make or use a copy of music for which the consumer has already purchased a license. The record company and artist have already been compensated.

I don't want to gloss over the legal and financial issues in the case of the MP3.Com/RIAA case. There may very well be a legal problem with the MP3.Com offering. First of all, knowing that a consumer has access to a CD in his or her CD ROM drive is not the same as confirming ownership. I can borrow a CD, pop it in my computer, and gain access to data from the MP3.Com library. That could be a problem.

Secondly, much of the underpinning of the RIAA's case against MP3.Com is based on the notion that MP3.Com is doing the copying, not the consumer. If you or I built a database on our home servers copying music from CDs we own, there would be no problem. But, according to the RIAA, MP3.Com is building "an unauthorized digital archive" of copy protected property "without making the slightest attempt to obtain permission from the copyright owners to do so." Under the traditional way of viewing copyright, mechanical reproduction is the whole ball of wax.

For example, MyPlay.Com -- a competitor to Instant Listening -- allows consumers to upload music from their own collections. That seems to be okay with the RIAA even though consumers could still theoretically still borrow disks and upload tracks.

But really, the legal nature of this dispute points to the problems in trying to apply the 1976 copyright law to the Net, and the problems inherent in the recently passed Digital Millennium Copyright Act. Because in applying both pieces of legislation, lawmakers have asked the courts to adjudicate by analogy. Streaming content from a Web server is akin to broadcasting, they reason, so the streamer should pay fees the way broadcasters do. But while Internet media is a lot like broadcast, it's also a lot like telephony, and it's also a lot like home recording, and it's a lot like nothing we've seen before.

Instead of trying to fit square pegs into round legal holes and instead of trying to stem the pace of new consumer adoption of new technology, it's time for record companies, artist and artists' management companies to start thinking outside the box, to leap ahead of the curve. I don't want to read in a court deposition about how digital technology is hurting music sales. Anyone old enough to remember the late 1970s and early 1980s music biz campaign to stamp out home taping knows better than to believe that. Instead I'd like to read about new ideas coming from RIAA member companies regarding new payment paradigms for a new recorded music industry which will be based on consumer access to data libraries of digital files playable on multiple formats.

* Jason Chervokas is co-founder and co-managing editor of AtNewYork.Com. Although he hates the audio quality of mp3's delivered over the Net, he's still uploaded some of his original music to MP3.Com (http://www.mp3.com/chervokas).