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The Napster DMCA Defense
kabloie writes: "This Cnet article at Yahoo! sheds light on the defense strategy of
the folks at Napster in their suit with the RIAA, which invokes the service provider provision of the DMCA. The lawyers interviewed say that if Napster wins this one, the RIAA (et al.) will be heading back to the legislative well again . "
I've been following the Napster "saga" since its start as shown here on /. a while back, and I've got to say that IMHO Napster is a bad thing. On /. we hear all the time about how "information wants to be free" despite information itself having never said any such thing, and the social consequences of such a naive policy are swept under the carpet and ignored.
Napster is a tool which allows artists to be deprived of the revenue which allows them to make a living. Making a living doing a job is the central point of a capitalist society such as the one we live in, and programs like Napster make a mockery of its principles. Every time you pirate a song using Napster you are directly harming the artist that spend days and weeks lovingly crafting a creative piece of work. Why should they bother when some 31337 h4X0r is just going to pirate it and distribute it across the net?
The DMCA was the response from the beleagured music industry to this new wave of blatent infringement of their, and their artist's, rights to profit from their work. If tools such as Napster and Gnutella hadn't encouraged this kind of rampant piracy then these laws would never have been bought into law in the first place. And now the Napster people are trying to subvert this protection measure to their own ends, without thinking of the consequences again. It doesn't suprise me, but it does sadden me.
When will we as a community learn to consider the consequences of our actions before blindly following someone elses "manifesto"?
How it all works
or Ignoring that Cognitave Dissonance
You may notice a large number of posts made on Slashdot concering Napster, or similar programs such as Gnutella or FreeNet. Often these will be posted under "Your Rights Online" (YRO), in order to show how the use of Napster affects your "rights". You may wonder what the hell programs whose sole purpose is to circumvent copyright laws is doing on a conservative (yes, I mean it) site such as Slashdot.
Let me explain to you. In the back of their minds, most Slashdot readers ("Slashbots") know that they simply don't want to pay for anything which they can get illegally for free. Most people are exactly the same way. Napster et al allows them to get music for free, so they use it. They know that this is copyright violation, which is a bad thing to do. This brings them feelings of guilt which they want to do away with.
How do they do this? They rationalize it away. It's the copyright laws that are wrong, not them. DCMA needs to be rewritten. The MPAA needs to be destroyed. It's an expression of free speech. And those greedy record companies take all the money anyway. Never mind that with pirate mp3s the artist never sees any money anyway. This way, they are sticking it to "the Man", who exists to make life difficult for 31337 Linux users like themselves. Yes, it is flimsy, and yes, it allows them to take the moral high ground by robbing hard-working artists. Yes, many will say that modern popular music is all horrible anyway, and that their favorite music is the only worthwhile type, but then go on to slam others for being "elitist" in any discussion in which Gnome or KDE is mentioned.
And what about the Corel Linux beta? Didn't that violate the GPL by attaching a boilerplate disclaimer saying that only people over 18 years old could download it? And remember the cries of the Slashbots that Corel should be sued, destroyed. boycotted, etc.? All because Corel who was helping out the Linux community mistakenly added a certain clause to their beta, which violated the GPL. As you can see, the "community" is quick to cry foul when the copyrights on their software is violated, even by companies with good intentions. Our copyright good, yours bad.
It's called "hypocrisy" and if you read Slashdot enough, you'll have to get used to it.
Now ask yourself exactly why ther is coverage of Napster on a site obstensibly devoted to Free Software. Napster is proprietary as hell. Those protocol specs had to be reverse engineered. Isn't proprietary software bad? Isn't all free software superior? Isn't "open sourcing" a piece of software the best way to improve it?
These are all bleatings of the party lines. Here, we consider proprietary software Evil until Rob Malda tells us otherwise, or it gets ported to Linux. Then it becomes a special class of proprietary software which somehow becomes better than the rest. Napster is one example. WordPerfect is another. Somehow, they are able to ignore this seemingly large discrepency by claiming that these companies are "helping" the "community". The only one being helped is Andover.Net who gets to sell ads to these people after giving them free publicity on the most popular "Linux" site of them all.
Stop lying to yourselves.
There are two fundemental problems here - but before I start, let me say up front that yes, it's hard to justify to a music artist why their work should be "given away for free". Not impossible, but tough. The case is far easier to describe when applied to software and programmers.
Fundemental problem number one is that there is NO WAY to prevent the copying and distribution of music files (or indeed, of any digitally encoded information). It is an IMPOSSIBLE task to stop it. You can restrict it for a time, you can nail a couple of individuals, you can do anything you like, but ultimately, you're playing whack-a-mole with a whole lot of moles. Any law written to prevent this activity is ultimately unenforcable, and an unenforcable law is an exercise in legal masturbation.
That does not, in of itself, JUSTIFY the behaviour (ie, "they can't stop me so it's OK" is not a valid line of reasoning) but the fact that you cannot stop it MUST be taken into account.
The second, much more important problem, is that art is not a product to be bought and sold. The recording industry has tried very, very hard to make this so, and they've poisoned generations of artists into believing that "art is a product" to help justify the neat little racket they've created, but the concept is flawed and rotten at its core.
Consider this: an artist sits in a recording studio, plays the song, and the song is recorded and mixed into the final cut. The whole writing-recording-editing process took a certain amount of time, and yes, the artist deserves to be compensated for that time. But once the artist has finished the recording, then there is no further cost to the artist - the job, as it were, is complete. If one copy is distributed, or a thousand, or a billion, it doesn't change the amount of work the artist needed to do to make the recording.
Why should any artist expect to continue to make money when their job is finished? How is that reasonable?
Consider this - I want my house painted, because I want people to look at my house and say "Gee, what a nice house!". So I pay someone to paint my house. Once paid, the artist moves on. It would be entirely unreasonable for me to pay the painter a royalty for each time my house was viewed - the job is done.
If I want a really nice paint job, then I hire a really good painter. Because he is so good, he can charge more up front for the job - but this is a service I'm purchasing. I'm not licencing my paint job from him. I compensate him for his time and talent, as is right and correct, but that's it.
Sound farfetched? It's not. Replace "house" with "ceiling" and pretend I live in the Cistene Chapel. Aha! Historical precident!
Record companies have legit costs - studio equipment and land use overhead, printing costs, distribution costs, etc - that they have a right to try and cover. They also have a right to try and make a profit. But the current recording industry is an aberration built on an erroneous assumption - that art is a product. It's not. It's a SERVICE. And if the money they make selling CDs is not enough to cover their overhead or to make enough product when anyone can copy the recording and distribute it at will, then what they have is a **failed business model**, not "theft".
Just because you've been selling ice cubes to Eskimos for years doesn't mean you will be able to continue to do so. And laws designed to prevent Eskimos from scooping up the snow outside because it circimvents your business aren't right either.
Art is not a product. Artists are service providers, not manufacturers. And it's time we stopped treating both of them as such.
That ultimately means that the days of bilionaire artists are coming to a close - and that's fine by me. Are the Backstreet Boys really worth 10,000 high school teachers? 5,000 doctors? I sure don't think so.
Want to learn about race cars? Read my Book
The problem isn't napster. It's people who are using it illegally. What these people are suggesting is like shutting down the Internet because it is widely used to commit copyright infringement. You don't go after the internet, you go after the people who are misusing it.
Now, that said, I don't think that Napster is that much of a drain on the music industry. I WANT to support the artists I like. Otherwise I might not be able to get any new music from them because they can't make any money at it. What I don't like is the current setup that the industry has. They make huge profits and most artists barely make a living (if even that). They jack up the cost of music for consumers, while providing no real benefit for us. If we could get our music from the artists without paying for all the unnecessary overhead, we'd pay a lot less for the music and the artists would get a lot more of the money. That's why I think the RIAA is bad. They are getting in the way of what needs to be done to change the system to benefit both consumers and artists. They're doing this because they realize that the unnecesary middle-men won't be able to leach off of a new system the way they've done with the old. They won't be able to control who gets their music produced and who doesn't. They won't be able to make artists give up their rights to the music they create in return for a chance at making a living as a musician. They realize they might have to make themselves useful for a change.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
rOD.
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Rod Begbie done this, and he's not
Reading between the lines...
San Francisco intellectual property attorney Neil Smith of Limbach & Limbach acknowledges the law is ambiguous but said he believes Congress intended it to protect (multi-billion-dollar) Net access providers like America Online, AT&T WorldNet and MCI Worldcom (who have paid lobbyists millions), definitely not companies like Napster (who are tiny little startups which can be effectively controlled).
Bah.
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Copyright infringement is a crime with a victim: the copyright holder. I agree that distributing copyrighted music without permission is a crime and must be stopped. However, Napster has legitimate uses so it must be spared. Consider Napster to be just like any other directory service.
"The DMCA was never intended for companies like Napster."
So remember kids, the laws are written for the protection of big business, not for the people or small business.
Don't forget to boycott big music labels and movie studios.
-jwb
On the subject of Napster, you are wrong again. Napster is a peer-to-peer file transfer tool, with a centralized directory service. You may be using it to commit crime, but I am not. Please don't project your own moral shortcomings on the rest of us.
-jwb
I don't need a program searching for mp3's
Then I hope you aren't using a search engine, FTP, web browser, or other program. I guess you suit up with safari equipment and go outside and hunt them the old fasioned way?
plus I wouldn't want people accessing my files on my computer.
Both Napster and Gnutella allow you to prevent anyone from seeing or DLing your files. Maybe you should TRY these apps before you start comenting on wether they are worthwhile or not.
Bad Mojo
Bad Mojo
"If you can't win by reason, go for volume." -- Calvin
Translation: if someone else uses our law, we'll change it so they can't. Laws are only for the use of our large, moneyed conglomerate and should never end up helping the little guy.
I wish there was a legal fund one could contribute to that would be guaranteed to finance a challenge to the constitutionality of the DMCA. Rather than supporting a bunch of different legal battles at once or supporting different advocacy groups (although groups like the EFF fill an essential purpose, don't get me wrong), it would be more efficient to have one case go "all the way".
Your right to not believe: Americans United for Separation of Church and
Come on guys, is that any way to talk about Hilary Rosen? You don't have to like her, but this is just a bit much! ;-}
Eric
The RIAA looses. Okay, so they go running to the lawmakers.....
THIS TIME, boys and girls, every one of us had better get off our butts and do something to keep them from being successful.
Write your senator. Write your house member. You can do it very easily through email. It is not that hard. Call them on the phone and talk to them. Make them listen.
I find the comparison to Xerox very interesting. I am sure that some time over the course of my collegiate career I photocopied something that I should not have legally done....besides isn't plagiarism the sincerest form of flattery??
The major difference in my mind is that a majority of authors are more interested in having their work read by a larger audience (the reason they are writing in the first place is of people to read.) However, most people in the music industry seem to be preoccupied with money. Otherwise the MPAA and RIAA would be proposing useful implementations of Napster.
So if money is the driving force then controlling the distribution market is key. If you need a reference for this fact check you encyclopedia under Gates, Bill or Vanderbilt
Predestination was doomed from the start.
So, copying CDs to your hard drive isn't legal, and it certainly isn't legal to distribute them.
Two words: Fair use.
Under the fair use policy of the US you are allowed to make a limited number of copies of something if you paid for it already. You just can't distribute it.
The Information Revolution will be fought on the command line.
Napster is just reflecting what people have been complaining about for a long, long time - The cheesy mass-produced music that we just love is too damn expensive. Very few CDs are worth the obligatory $15, IMHO.
If the record industy wasn't such a bloated near-monopoly very few people would bother to copy and distribute copywritten music. Think $4 CD's and Napster becomes the underground/independant savoir it should be. It'll never happen, the music industry doesn't care about selling a quality product at a competive price, it only cares about hyping the next sensation and making teenagers spend mom's last Jackson on some CD that'll be in the discount bin in 18 months.
If there was real competition the radio would be chock-full of the great music that doesn't usually get signed instead of ballads about teenagers in love and the stores would be full of good, cheap CDs. The blame does belong on both the industry and consumers, more so on the industry for targeting their collective crap at the most impressionable demographic and selling some naive idealized love/lust. This isn't a freedom of speech issue, but do you really think anyone would care about Spears or Brandy if it wasn't for the huge amount of advertising bullshit constantly being poured into mass-media?
Real competition just isn't possible with the media control and advertising budgets record companies have, independants suffer and will continue to suffer until something is done. This is business in American in a nutshell. In the mean time why not steal and piss on the companies you don't like, you can still be moral and disobey the law and not be a hypocrite.
These quotes illustrate one of the biggest problems with trying to write specific laws to cover specific, narrow behaviors. The wording of the laws always misses important details. Give me a simple law, a good jury and a judge to answer their questions over endless legislative tweeking any day.
The net will not be what we demand, but what we make it. Build it well.
You'll have to pardon my ignorance, but why is Napster under fire from the RIAA? Truthfully, Napster itself has done nothing illegal. How is Napster any different than, say, freshmeat.net? Freshmeat is giving away free software, shouldn't the SPA be all over them too? Of course not, because all the software on Freshmeat is open source.
Legally, MP3's are ok. I can chock my hard drive full of MP3's as long as I a) legally purchased that music or b) have consent from the authors/publishers to store it. I have a lot of cool MP3's on my hard drive that I put up on Napster that are 100% legal for anyone to download, possess, and redristribute. That's what Napster was supposed to do. The fact that yahoos trade illegal MP3's isn't the fault of Napster. Period. That's like saying if I store a pirated copy of Photoshop on my ftp site that my ISP is to blame, not me.
Maybe I'm way off on this, since I haven't been following this issue very closely. That's just how I feel.
There is no reasonable defense against an idiot with an agenda
:wq
If the RIAA shuts Napster down (And I don't really see how a judge could find for them without also shutting down every web and FTP server on the net) I'd be amused if some garage band were to sue the RIAA for restraint of trade or something.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
Just wanted to point out that Gnotella 0.1 ( Gnutella Unix clone) is out. (I mirrored the tar.gz, since I couldn't find it on the webpage anymore)
Or you can, of course, use web-based gnutella-searches like this to search for your strawberry-rhubarb pie recipes.
-- "Tradition is the illusion of permanence."
Here's my DeCSS mirror. Where's yours?
Here's my DeCSS mirror, where's yours?
> what does the RIAA get out of stopping Napster?
> People have always been copying tapes, taping
> shows
Yup...and the RIAA tried to put a stop to
that stuff to. They arte the reactionaries.
Whenever new technology comes out that could
give the public the ability to do things only
RIAA memebers and few others could do (ie, most
people can't stamp out vinal...until the past
few years couldn't make CDs...) they react
by trying to stop it.
Just look at the rukus over casset tapes when they
first became available and econimical for people
to use for copying music. Its the same thing all
over again.
Personally, I think that copyright is an outdated
system that is no longer socially useful, and
simply serves as a baton with which large
corperations can use to bully people and keep
everyone else at the bottom of the "IP Hill".
It was designed to help authors in a time when
mass production and distribution was out of
reach for all but a few people, ie those who
could afford a printing press. It was designed
to stop publishers from taking authors works,
selling them and not paying the author (the
original meaning of "pirate")
Now that technology is rapidly bringing mass
publication into the relm of the average
person, its time to abandon these outdated
ideas. If the current day media powerhouses
lose money because of it, then it was because
they couldn't adapt and were unfit for the world.
Now of course, the RIAA and record companies see
this happening. Like any organism facing
facing possible extinction, they are fighting to
remain alive.
"I opened my eyes, and everything went dark again"
I hate to argue against these guys, but that is going to be a very difficult thing to convince the judge, if phrased like that in from of a tech-savvy judge. Not only do they provide the protocol, but an indexing database server as well (as I understand the technology at least, I may be wrong.) Web(http) and FTP, the two example given cover the actual wire protocol.) The protocol's dont index the information which is available on the web, or ftp. There ARE services which can legally index the information, which is where I see their loophole being. Google hasn't been sued yet for carrying a database which contain links to software cracks (which they do if you type in the "-softwarename- crack" in their search.) It will even rank them for you, with the most linked to one first, and a cached version of the page!
I think it would be much better for them to take that line. I think (I am no attorney) that all they would have to do is prove they are linked to legit MP3's as well.)
Indexing content is consider "ok" on the internet, and so is deep linking. I don't think their argument on it's own can stand up, but these two together could create a fairly solid defense.
Don't take this as legal advice, or anything like that. This is my uneducated knowledge of the laws-Pete
Soccer Goal Plans
Well, well. I'm glad to see that the DMCA is finally being put to good use. What do you want to bet the MPAA and RIAA are going to be upset if all their precious (gollum - oops, sorry) money they spent to lobby for the DMCA ends up supporting the very thing they wanted to stop.
kwsNI
"Congress intended it to protect Net access providers like America Online, AT&T WorldNet and MCI Worldcom, definitely not companies like Napster." I love this quote. What is this guy saying, that because congress intentionally shield the ISPs from liability, other 'internet service providing' companies that just dont happen to be traditional ISPs are protected. (I'm laughing because it also implies, that if AOL wanted to distribute mp3s to it's subscribers, it could because it is a big media company not a little pirate napster warez thing. --gales of derisive laughter, bruce)
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