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First of all, you yourself cite the bit of US Code that specifies purpose and character of the use is to be taken into account: the _first_ concern is whether the use is commercial. That means 'is the exchange being done for money, or for nothing?'. That is the _first_ concern: or if you like, loophole.

More importantly, I can't help but think you intentionally ignore Sec. 1008 of title 17 (you're not the only non-lawyer computer dweeb that can use Google to look up genuine US Code to back his position):

No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

I am aware that there are amicus briefs desperately trying to argue that mp3 is not a digital recording medium. I give in, I concede: mp3s are a cassette tape. No, wait, that too is protected! Let me rephrase that: mp3s are a ham sandwich. If you'd like to join me in insisting that mp3s are not a digital recording medium, but a ham sandwich, together we can explain away sec. 1008. On the other hand if you're not a gibbering psychotic you might be more inclined to take the natural view that mp3s are precisely a digital recording medium.

Failing that you may wish to skip over this bit of the argument and lean on another poor bit of argument- that sec 1008 does not make infringing use into non-infringing use: it just permanently exempts that class of users from prosecution or harassment. Which would mean that although you may feel Napster users are thieves, all you _can_ do is taunt them about it, as you are barred from filing suit against them.

Which is just what you're doing, isn't it? I'm glad we understand each other, and no wonder you're upset. Call me a thief some more, maybe it will soothe you despite being an entirely impotent act- and despite the fact that when I talk about putting mp3s on the web I'm talking about my freaking music, which does not even have samples in it.

Honestly, I'd think you'd give up at some point. I can tell you why I don't: what happens to the concept of intellectual property in the music and entertainment industries is of direct interest to me. What's your excuse? Personally, I would like to see intellectual property abolished outright, and for the content creators to fall back on protection against simple fraud and loss of credit: rather than it being illegal to (costlessly, trivially) copy the actual content, it should simply be illegal to claim the content as your own, because that would constitute fraud. I daresay there is considerable justification for prohibiting dilution: I would consider it a violation for someone to take a musical piece of mine, overdub singing munchkins and use it in an advertisement, because that seriously dilutes the recognizability and integrity of my original piece. However, people swapping and checking out my stuff? Sure, not a problem. If there's a black market for people copying and _selling_ my stuff parallel to my own sales, that simply means I'm not competing effectively with their distribution channels.

We can go on like this for weeks: why don't you just give up? You're not winning, you're just pounding the table and referring only to the parts of the US Code you like. That's dishonest. Not that I would expect someone siding noisily with the RIAA of _dishonesty_ :P

Wasn't it Hatch who made a point of formally stating that the Clinton administration's take on Napster (their very negative amicus brief) did NOT represent Congress's viewpoint?

Call me what you like (I'm not primarily a computer geek- I'm a musician- and clearly oh such a criminal in putting my music out as mp3s) but I'm not impressed by your abuse, nor do I find it very persuasive. I think I know what fair use is better than you, regardless of whether you are a RIAA lawyer or usenet troll or whatever explanation you have for your oddly familiar, take-no-prisoners-concede-no-losses rhetoric.

To put it simply, I see a qualitative difference in the new technology, very similar to 'Star Trek' concepts. People sometimes discuss what would happen to economics when 'replicators' are invented for physical objects. What does that do to the proposition of value? Well, in the music business we have exactly that: it's called digital copying, and we even have quick cheapo copies called mp3s that aren't as good as the real thing but even easier to copy and transmit.

Like it or not (for you, I'd guess it's 'not'), this changes everything. I for one am not willing to stand in the path of progress: it is entirely obvious that this form of property is made absurd when you can download innumerable copies of the 'product' at no cost without depriving the original owner of their copy.

Yet what is the product? You don't get the physical media- did you want that? How much will you pay? Your downloading a thing will not make it hit Top 40 radio- how much value is in that? Your downloading it doesn't necessarily mean you get to make the soundtrack of your film out of it and charge money to see it- that is a more traditional form of copyright, like repackaging, and there's an argument for controlling that, such as Lucas is making against Dr. Dre for ripping the THX sound and _using_ it to open his album.

All these things are forms of value entirely independent from the proposition that music's value is derived from control of the sounds themselves. Anyone with _any_ experience in the business knows the sound is almost irrelevant- it hardly _matters_ what the sound is. The important thing in the business is distribution channels, the independent promotion network (not 'indie labels', the payola stuff for radio), doing tonnage on physical media and getting it to the stores and saturating media with your promotional message. Nothing done on Napster can affect this.

How old are you, "FatHogByTheAss" (cute), and what are your credentials? Hell, never mind credentials: tell me three books on the music industry that you have read that qualify you to have even half a clue here. I will be happy to give you a list of titles if that will help. The problem here is that you're spazzing out with wild accusations in a very pedantic way and being no help at all with the very real problem of figuring out where the industry is heading- now that 'replicating' music is trivially easy and costless. That's a really big change! Sticking your head in the sand is a really stupid way to react to it.

Me? I'm going off right now to upload still more music to besonic.com/chrisj: latest album is fretless guitar Frippertronics ambient music with a very rich deep reverb sound probably beyond anything you'll ever hear off the major labels. Then I'm going to leave the files uploading, and go get the makings for tacos, and make myself a delicious taco dinner. I wish you a good dinner as well- if the acidic churnings of your worry-racked gut will allow it, what with all the criminals and all, who aren't even ashamed. I'm not worried though I am busy- I may never make money off my music directly (actually I've made hundreds of dollars, but you know what I mean), but I build equipment as well, and I have many people encouraging me to go into business with this. The technological changes that have radically altered the music business have evened the playing field for me as a designer- now I can encode mp3s with example sounds and put them up on my website, use my music as further demonstrations (like Tom Scholz did with the Rockman and the Boston albums), and appreciate REAL 'network marketing': not clowns trying to rope their friends into flogging cheap junk, but the ability to (through mp3, eBay, the net) promote stuff _purely_ by people discovering it on their own with no ad budget or spamming or mass media coverage, and (through UPS, the post office, etc) ship directly to customers without having to maintain brick and mortar storefronts.

It's a pretty exciting time to be in this business.

So, I have very little sympathy for your position. I hope _more_ people become 'thieves' by your definition. They are establishing habits of information exchange that will serve them well in future years, and will make for more of a free market, because the information they're exchanging and picking up is not centrally controlled anymore. This means it has the potential to build support for areas of the market that were being stifled- for instance, classical and jazz. I can't tell you whether this type of networking will lead to new genuine classical recordings being made with real orchestras- unlike chamber or jazz music, some classical costs a lot to produce. However, it's dying off anyhow because the controlled market doesn't have a place for it, so how could a digital underground hurt matters? In this area the situation for years has been 'we cannot get the labels to _put_ _out_ what we want. Plus they're destroying 10,000 irreplacable jazz and classical master tapes to make way for new Britney Spears'. I'm not making this up.

To paraphrase Darwin (and you should be thinking about what the straight Darwinistic view of this Napster development would be), "I unhesitatingly affirm my preference for the thieves."

#2: the artists making that 'more money' ARE THE FREAKING BIG-LABEL ARTISTS, thank you. What gives you the idea that they are not? Do you seriously think sales are hurting? You're wrong. In addition to that, the little indie acts are NOT making more money than they used to- they are just not having to SPEND as much for exposure.

Take me for instance, I've made money off mp3s. I was at mp3.com until they did nasty things to my contract with a fork and I left. (Now I'm at besonic.com/chrisj, still doing noncommercial stuff with very commercial production and engineering.) I made hundreds of dollars which is chicken feed compared to the big label machinery- but unlike the days when I duplicated cassette tapes and printed up J-cards, this time I did not SPEND as much for that level of distribution! That is really the key. It's not even about raking in lots of money as an indie artist- never happened, never will.

Indie is sort of a trial balloon for the REAL value of distributed music. The value of mass media marketing and fads and heavy brick and mortar distribution... is different. Hell, almost half of a CD's list price goes to independent promotion- you might know it as payola, and the record labels don't like being dependent on it one bit, but they tried to kill the independent promoter network in the 80s and totally failed. My chances of cracking that independent promoter network are approximately 2,000,000 percent less than nil, so no matter how much copying goes on, the big labels DO at least have an absolute lock on traditional media. I think they should be grateful for that instead of whining when alternate media turns up.

Oh- and is anyone _ever_ going to do a little tiny bit of homework and clue that noncommercial copying and distribution was formally legalized under the Home Recording Act for the benefit of tape cassette users, and taxation put in place to compensate the RIAA directly? I'm sorry, but 'crime' is not 'that which I think is bad', 'crime' is what's spelled out in the law books, and our government SPECIFICALLY LEGALISED noncommercial copying and exchange when the Philips compact cassette became popular. I just wish, I really wish that people would confine their arguments to reality or stick to emotional squawks. Noncommercial copying and exchange is legal. Period. _Digital_ versions of that are subject to the DMCA and even that has fair use provisions- they just suck, and the guy who put through the DMCA, Orrin Hatch, is very unhappy with what's happened to fair use, and we haven't seen the end of this.

But the bottom line is: crime is what the law says it is. _Morality_ is different, and you may feel it is immoral to copy major label music at no cost and take no money for exchanging it. However, your feelings are _your_ problem because the law does not support you.

The whole mp3.com thing is rather interesting.

I had some of my music up there for just under 3 months. We (The Tic Tok Men) went from number "nothing" to number one in our genre in just a few days. We pretty much held that chart until mp3.com removed the music genre "old skool" where we were listed.

MP3.com then added a new genre called "intelligent techno". We placed our music in that genre and BOOM, went to number one there. We held the number one in "intelligent techno" while the music was there, and number one for the state of Oregon several times. I think our peak was 200th most popular on all of mp3.com.

MP3.com then started the Payback for Playback promotion where you received money for a mix of band page views, music downloads, etc.

On November 28th our popular music went away. For no reason. Well,. Sort of went away. They went from "live" to "going live".

For a little background on how mp3.com works. When you first upload a song it gets placed in a "waiting to be approved" que. After the music is verified it is indeed in the proper mp3 format, then it goes to "going live" status. Normally, mp3.com says "going live" can take from 24-72 hours before it obtains "live" status. The music can not be downloaded or be placed in the charts until it's "live".

Well,. Our songs went from live to "going live" and were instantly removed from the charts. We found the whole thing a bit upsetting and attempted to ask mp3.com what happened. Pretty much the only response from mp3.com was a form letter type e-mail telling us it takes up to 72 hours for a song to go from "going live" to "live". Our calls to the mp3.com offices only resulted in voice mail boxes or forwarded to a recording telling us to check out the FAQ online.

In the meantime, mp3.com extended the Payback for Playback promotion. Which of course we totally lost out on.

Out of 6 songs on mp3.com, only two remained. These two where NOT the popular ones. In fact,. Of the six,. The two that were left were always the least downloaded. Oddly,. These 2 songs were also listed as "going live" but were still available. As a test, I downloaded one of these songs and checked the stats the next day. The download was not recorded.

I think we were one of the few bands on mp3.com that were actually selling cd's. (12 in November alone) A visit to the mp3.com message boards reflect many upset musicians complaining that they haven't had any downloads and never sold a cd. Sometimes you hear from a musician that is ecstatic because he had his music and CD available for almost a year and finally sold ONE CD!

MP3.com also has an interesting "scam" going where to make a CD available, the artist has to buy one to make it active. So,. You shell out $5.99 or what ever and you get 50% of that. Sounds ok right? Here's the scam part. MP3.com will only issue you a CD commission check if they owe you more then $50.
Think about all those musicians that have only sold one CD, and THEY bought it. They will NEVER receive a commission check. In fact, really, they loose money.

Another common complaint is people getting upset at mp3.com and removing their music, only to find the songs, for some reason, remain for weeks or months on the mp3.com site. Mp3.com says "you can cancel at any time" but don't respect the musicians when they do. (We, in fact deleted our "going live" music from mp3.com several days ago and the two that remained are still there.
Check http://www.mp3.com/tictok and you'll see what I mean.)

After being at mp3.com for just under 3 months, selling quite a few CD's and getting a number of hits and downloads (which added up for the November Payback for Playback promotion) I haven't ever seen a check from them. They owe us well over the $50 mark.

We used to have our music at mp3.com but moved it over to besonic.com. Besonic doesn't offer any money for your music, they don't have cd's available yet, you just put it there and people can listen to it. Looks like the only money they make is from advertising. That's ok with me. Seems like I get a place to house my music without feeling overly exploited.

So,. Here's a shameless plus. Take a listen to us at
http://www.besonic.com/tictok
and hear some really great electronic music in the vein of Kraftwerk.
If you like it, please write a nice little note to mp3.com telling them how they lost a really swell band. Heh heh.