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MP3.com Loses In Court
The Code Hog was among the first to write with the news that "CNBC is reporting that MP3.com lost its court case with RIAA; the court finding that MP3.com is infringing on 'thousands' of artists property." Alert readers like Szyzyg and SethJohnson contributed links to coverage on zdnet and on yahoo respectively.
I have five albums up for sale at mp3.com:
- anima is rock instrumentals on animal themes, eclectic, with some fine performances
- Extended Play is long-format rock instrumental music- hot, guitar-based jams with some Mothers influences
- Hard Vacuum is a dedicated Noise album that revells in raw sound-as-sound
- The Room Full Of Windows is vocal indie pop/rock from the heart
- The RFW Demos are songs that didn't make the RFW album, but something about them seemed cool enough to put together a demos reel
All of these are $5.99- through mp3.com's impressively fast CD-to-order facility, you could buy any of these CDs and have 'em within a couple of days, pretty CD cover and all.If anyone had entertained thoughts of maybe getting one of these someday, or for that matter of ever picking up a CD to support some other mp3.com artist, or even downloading stuff...
didn't it say damages were yet to be awarded?
the interesting judgement would be to conclude (fact of law) that while MP3.com did something wrong, that since no harm was done (no CD sale was lost by action of MP3.com), no damages are due.
that'd be justice: all wrongs made right, and yet not endorsing further extortion by the record industries.
See RIAA's filed complaint here. Paragraph 26:
- In order to create and offer this service, defendant copied every track from 45,000 commercial audio CDs onto its computer services. All or virtually all of these audio CDs are marked as copyrighted and contain explicit notices prohibiting unauthorized copying.
... Included among these infringing reproductions are copies of thousands of copyrighted sound recordings owned by plaintiffs, none of whom has authorized defendant to make any such reproductions.
Also, paragraph 34:- Defendant has willfully and with full knowledge of plaintiffs' copyrights made infringing reproductions of thousands of plaintiffs' copyrighted sound recordings for the purpose of operating its commercial My.MP3 interactive service.
In fact, if you look through the actual allegation of copyright infringment (the 1st and only count alleged against mp3.com, paragraphs 31-36), the only copying really mentioned is copying from the physical CD to MP3.com's computers.They also allege that MP3.com is distributing these "infringing reproductions", but that's not in the actual count itself.
Unless I'm misunderstanding, it seems that this could be a huge precedent that could prevent home users from making MP3 copies from CDs that they legally own.
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Which brings up the point of an exact copy. Yes, you could defeat it with an exact copy. But who is at fault there? The person who copied the CD? The person who copied the CD? Or the person wop accepted the fake? Who got in trouble in school for copying a paper? The teacher who accepted the fake as real?
They were distributing copyrighted material without a license. Even if they were sure that the users alreay owned the CD's, the legality is still very questionable. And with the availability of free ripping software, the usefulness of such a service is also rather questionable.
I wasn't aware it was that black and white - from what I heard it was distinctly grey. MP3 own copies of all the CDs you get beamed. In order to get a CD beamed you have to physically have it at some point - most people will own the CDs rather than nick their friends collections. MP3.com allows to to access MP3's of your CDs once these conditions are met. Now maybe they need a radio playing license or something similar to be able to provide a directed broadcast to your authenticated browser, but in principle it sounds reasonable. Whether this constitutes fair use, which I suspect is MP3's defence, is another matter - the courts don't appear to think so.
How long is it going to be before we get a real MP3 broadcasting radio statio playing MP3's of mainstream artists? With the increase of digital broadcasting over the air (i.e. the UK is going towards digital broadcasts as the BBC ramps up it's transmitters, and satellites have broadcast NICAM digital radio for a while), I see no possible justification to stop some website broadcasting MP3s if they can get a license. Why do I get the feeling that RIAA really don't want that sort of license to arrive?
Cheers,
Toby Haynes
Anything I post is strictly my own thoughts and doesn't necessarily have anything to do with the opinions of IBM.
I don't understand why they risked the future of their company (which was doing quite well and has one of the best domain names on the 'net) without thoroughly researching how this would affect them in the future. Heads are going to roll at MP3.com: their entire legal counsel team should be fired, not for losing the case, but for allowing the company to get in this mess in the first place.
Maybe if MP3.com has gotten themselves licensed by the recording companies first...
The crux of this case (I believe) is not whether or not its legal for an end-user to listen to an MP3 of a CD that they own, but whether its legal for a company (such as MP3.COM) to *make* MP3's for redistribution to end-users, from original CD's.
It's not a case over whether or not you have a right to listen to MP3's of your own CD's. You *do* have a right to do that.
It's a case over whether or not MP3.COM can 'steal' (RIAA's terms, not mine) music from other CD manufacturers, for re-distribution. When you sign up for their service you are downloading MP3's of CD's you already own, but which were *made* by MP3.COM. This is the crux of the legal wrangling that RIAA is using to try to bring down the bull of MP3.COM, so to speak...
What this is more similar to, as a case, is radio stations. RIAA's clientele already have vast quantities of precedent for radio stations retransmitting their material, and there's a thing called a 'license agreement' that a radio network must agree to before it can broadcast the latest Britney song... RIAA is arguing that MP3.COM have violated copyrights, much the same way that a Pirate Radio station would have done, by broadcasting material for which they (MP3) haven't obtained a right to use from RIAA's clientele...
Now, it could be that after all of this, MP3 and RIAA go into some sort of licensing agreement which allows MP3 to make MP3's of RIAA's clientele's CD's, but more than likely this won't happen - RIAA is too bloodthirsty, and the music industry already full of hyena's, that this will probably just result in MP3.COM's downfall, sadly. It could be a simple matter, but alas - greedy pigs in the music industry don't see it that way, if they can't control it.
That's just my understanding of this lawsuit, so don't quote me, and please correct me if I'm wrong in assessing this.
; -- the corruption of government starts with its secrets. a truly free people keep no secrets. --
"I pirated your new album and really liked it. Here's five bucks. This is way more of a cut than you would have gotten from the record company. See how this could work? Now go tell your label they're moronic dinasaurs and your're sick of them picking at your and your fans' carcasses!"
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DO NOT DISTURB THE SE
They were distributing copyrighted material without a license. Even if they were sure that the users alreay owned the CD's, the legality is still very questionable. And with the availability of free ripping software, the usefulness of such a service is also rather questionable.
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MP3.com lost here--and rightfully so, I hate to say--because they were offering downloads of songs to customers who already owned the CDs of those songs. Well, that's providing a service based on distributing copies of someone else's IP. That's a service which, given the current tenor of copyright law in this country, only the owner of the IP would be entitled to offer. It's rather like, if a company were to offer free downloads of the full 6-disc SuSE distro including all the non-freeware programs, for anyone running that edition of SuSE. SuSE and the companies whose non-free programs are included would probably get very upset and sue, concerned about their ability to keep track of their IP since there are ways to fool the server into thinking you're running full SuSE whyen you're really not.
I don't think it's at all unfair to close this service down, since MP3.com can keep offering downloads of songs it *does* have a right to offer, such as from artists who've given permission, have contracts with them for downloads, etc. This was a very limited part of MP3.com's services which was ruled a violation.
Napster is an entirely different issue. Napster is a network, which allows users of the network to connect to each other and download stuff. Napster itself doesn't host songs on its own "site" like MP3.com's MP3 Anywhere or whatever it was called, was doing. So, it's very likely that Napster will be ruled some form of "common carrier" and therefore not liable for what its users do amongst themselves, since its network has a legitimate use in allowing users to distribute non-copyrighted sound files. To make Napster police its network to decide what is and is not copyright infringement would put an undue burden on Napster and similar networks, and is not what a judge would order. In fact, if a network does police itself, then it would become liable--but if it just provides an open service, it can be considered a common carrier. Just my 2 pence...
"The more corrupt the state, the more numerous the laws."--Tacitus, *The Annals*
The market for games then was so small that one company - Microdeal of St Austell, Cornwall - published virtually all the games on the platform. They were all "ports" of Tandy CoCo games from the states. "ports" means they just patched some ROM addresses, since the machine really was a clone apart from some keyboard lines being switched and having a new ROM (written by a tiny little software company called Microsoft).
Now, anyone still using the Dragon 32 in 1986 was a real enthusiast. A lot of us had bought the disk drive expansion unit, at a cost of around $600, in order to speed up loading and saving our little BASIC programs.
The problem was, Microdeal wouldn't release their games on floppy disk. The market was "too small" - it was tape, or nothing.
I was a hacker, though, so I was capable of hacking the little games and putting them onto disk. Wow. I could fit 26 games onto a single 720K floppy. That was cool. But not everyone had my patience and experience cracking the "protection" they put on these games.
So little me, with my little fanzine, decided to offer a service to people. "Send me your tapes," I said, "and I shall put them onto disk for you, at a cost of only 50p per game." You see, I wasn't in it for the money, I just wanted to help people out. I was just a kid. Anyway, I already had 90% of the games on disk already so those jobs would be easy ;) In fact, it seemed silly to ask for actual tapes, so I just said "send your original inlays, to prove you own the game, and I shall send you a disk with the game on it."
Quite similar to MyMP3.com, really.
Well, Microdeal had a fit. Their President wrote me a very indignant letter, saying I was pirating the games and would I really check people had the games before sending them, and claiming that I was being immoral in offering this service.
Me?! Immoral?! All you guys have to do is write the things onto disk and upgrade people for a couple of pounds ($3.20) but you don't bother; you expect people to use these old-fashioned tapes forever.
(My legal sophistication was a little lacking in those days).
Anyway, I wasn't about to go up against some huge monolithic company like Microdeal, so I withdrew the service, with a tear in my eye.
I guess the point is that this service seems fine and dandy and reasonable, but legally it's on thin ice. I'm a little saddened, but not entirely surprised, at this court decision.
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It's a
-- Danny Vermin
I guess I must not be as smart as a lawyer, cuz I just don't get it! How could a service that allows you to listen to an mp3 of music that you already own be infringing copyright? my.mp3 only lets you hear what you've already shown it that you own, or am I getting something wrong here?
Sure, you could borrow a friend's CD and add that I suppose, but you could also make a tape of it and play it in your car. That doesn't make tapes illegal, just the act of dubbing. I don't know of anyway to get music that you didn't pay for through my.mp3.
But hell, let's all keep heading down this road and keep fighting technology we don't understand. Maybe we should stick to something simple like banging two rocks together to make music. Of course then someone would copyright rocks, and if you tried to play the same rocks in a different place you'd get sued.
-MadDreamer
-Mad Dreamer
http://www.modernhumorist.com/propaganda/mp3.html