Judge Rakoff Explains MP3.com Ruling

Saint Aardvark writes "Wired News reports here that Judge Rakoff explained his ruling on MP3.com. According to him, MP3.com was "simply repackaging" the recordings, adding nothing, and therefore unable to claim fair use. "

Comments

Reasonable

[phil reed]

A reasonable ruling. mp3.com is going to have a hard time overcoming this.


...phil

Re:Reasonable

[technos]

Yeah.. mp3.com had a rather, ehrrm, fecally proficient defense. The transformative time-shift argument was a good one though.. So, when is the next episode of 'RIAA vs. Sanity' going to be on?

Re:Reasonable

[mszeto]

I think that althought the record companies have won in the courts, that they have: a) Waited too long for this kind of action b) Misplayed their action. Its a fact: mp3 will not go away. I don't think making it illegal is the right way to deal with the problem. The reocrd companies, with this ruling, now have an incredible chance to work with the format and partly control it. These court battles will only make the format go underground. Why send it underground when you can try to make money from it and use it to your advantage?

Re:Reasonable

[StenD]

A reasonable ruling.

Agreed. In this case, the good guys were in the wrong (legally, at least). I don't think that many people would argue that if freehtmlbooks.com[1] offered you access to books on-line which they had scanned in if you send them a scanned image of the copyright page, that freehtmlbooks.com would be violating copyright law, and that was, essentially, what mp3.com did. It is unfortunate that music publishers don't want to make music available in mp3 format (like Baen offers some of its new books in html format), but the answer is to refuse to purchase new music from them.

[1] Damn, it was hard to find a reasonable electronic book domain name that wasn't actually registered. ;)

Re:Reasonable

[da5id]

BUT they were adding something, they were adding the ability to listen to your music anywhere. That seems to me it would be fair [use]!

The Uber Nerd

Re:Reasonable

[Lagged2Death]

It was my understanding that MP3.com's service allowed a user access to only his/her own legally purchased music. That is, if I uploaded Mozart and you uploaded Beethoven, I could listen to my Mozart over the net, from anywhere in the world. But I could not listen to your Beethoven at all. Similarly, you could listen to your Beethoven, but not my Mozart.

That's not like your freehtmlbooks.com example. It's more the equivalent of e-mailing something to yourself, so you can pick it up in another real-world location. It's not intended to let you share your music, it's intended to make it more portable.

This is why I don't understand the ruling; there doesn't appear to be any copyright violation, really. I'm allowed to make a copy of a CD for my own use. I'm allowed to use the US postal service to mail the copy to another place. Somehow, the judge feels that doing the same thing electronically is functionally and legally different. I can't understand how that could be.

Re:Reasonable

[MarkKomus]

"That is, if I uploaded Mozart and you uploaded Beethoven"

But the key thing is you're not uploading Mozart at all. MP3.com's software was just verifying you in fact had the Mozart CD and then allowing you access to a mp3 of the CD which they had created. It would be different if mp3.com was a repository for mp3s people made themselves and uploaded, basically a protected web site for just you as such (like a hotmail account).

Re:Reasonable

[Eccles]

A reasonable ruling.

Oh, puh-leaze. According to the article, "Rakoff disagreed with MP3.com's argument that its music service is the 'functional equivalent' of storing CDs that had already been purchased."

Hello? Are or are not all copies of a given CD nigh-identical copies? We can either copy the 650 megabytes from my system to theirs, or we can check beforehand whether they already have a nigh-identical copy, and skip doing that copy. That *IS* functionally equivalent.

Now, if the judge had ruled the system illegal for some other reason, that would be different. But since this completely incorrect "fact" seems to be a key part of his ruling, the rest of the findings of law collapse like a house of cards.

Anybody got a clue stick for him?

Re:Reasonable

[wildcardj]

But simply inserting a CD into your computer once doesn't prove you purchased it. The way it worked was that the first time you wanted access from a computer, you insert the original CD into your drive and register it with my.mp3.com. Afterwards, you can listen to it without the CD.

So if I borrowed 100 CDs from a friend for an afternoon and registered them, then returned the CDs, I would be able to listen to music I hadn't purchased. Hence copyright violation... they can't really guarantee that users have purchased the CDs, just that they had them in their possession for a minute or so.

Re:Reasonable

[jimhill]

Your postal mail analogy is flawed. What MP3.com was doing was not the equivalent of you mailing a copy to another place; it was the equivalent of them buying and scanning in books and letting you have a copy if you showed them a receipt for that book.

Yes, you can rip your CDs to MP3. Yes, you can upload those MP3s to a server to listen to anywhere in the world. Yes, MP3.com can do the hosting. No, they cannot do the ripping for you. It seems a little silly that they can't, since there is no functional difference between you ripping/uploading and them ripping and storing. So write your Congresscritters and ask for a change.

As a side note, the day this service went active, every lawyer I saw quoted said this was going to happen. It was the closest thing to a slam-dunk that the media companies have had. And if MP3.com had been willing to sit down with the media companies, explain the service, and sign a deal wherein they kicked a few bucks the RIAA's way, they'd probably have gotten the all-clear.

Re:Reasonable

[boing boing]

I believe that the law is at fault here. Look at the following excerpt from the RIAA.

-Start-
What You Can Copy

First, for your personal use, you can make analog copies of music. For instance, you can make analog cassette tape recordings of music from another analog cassette, or from a CD or from the radio, or basically from any source. Essentially, all copying onto analog media is generally allowed.

Second, again for your personal use, you can make some digital copies of music, depending on the type of digital recorder used. For example, digitally copying music is generally allowed with mini-disc recorders, digital audio tape (DAT) recorders, digital cassette tape recorders and some (but not all) compact disc recorders (or CD-R recorders). As a general rule for CD-Rs, if the CD-R recorder is a stand-alone machine designed to copy primarily audio, rather than data or video, then the copying is allowed. If the CD-R recorder is a computer component, or a computer peripheral device designed to be a multi-purpose recorder (in other words, if it will record data and video as well as audio), then copying is not allowed.

Admittedly, the rules for digital copying are a little more complicated, but they exist for a reason. Under the Audio Home Recording Act, the manufacturers of some types of digital recorders pay a modest royalty to partially compensate the artists, record companies and music publishers hurt through unauthorized copying. These devices also incorporate technology to prevent what is known as serial copying, that is, second and higher generation copies. Thus, while you are allowed to make a copy from an original, you are not permitted to make (and compliant recorders will not permit)copies from copies. The royalty provisions and the serial copying provisions are an important part of the compromise that allowed these digital recording technologies into the market.

-Stop-

The rules are unneccessarily complicated. If one instance of digital copying is allowed, they all should be allowed ***For Personal Use***. And mp3.com has no way to control whether copyrights are being violated. They should pursue the consumers of mp3.com who they believe are violating the copyright.

This law seems to stink like it was paid for heavily by the recording industry with no real thought paid to the long term consequences.

Re:Reasonable

[Tackhead]

> if I borrowed 100 CDs from a friend for an afternoon and registered them,
> then returned the CDs, I would be able to listen to music I hadn't purchased.

Agreed - but how does ripping and uploading your own MP3 prove that you purchased the CD either?

All it means is that you had your mitts on the CD for 15-20 minutes to do the ripping to your hard drive, rather than 1-2 minutes to do the CD-registration at my.mp3.com.

Either space- and format-shifting of CDDA media to MP3 files to be downloaded over a network is legal, or it's not.

I know that you didn't make this distinction in your post - and that you (and I, and most others) would all agree that a user who brorrowed 100 CDs from a friend to rip them and upload them to a secure web space was just as much a copyright violator as one who pulled the same kind of stunt with mp3.com registrations on borrowed CDs.

But the judge did make this distinction, and in so doing, IMNSHO, displayed a shocking lack of clue as to what IP law was intended to do.

What should matter is whether or not the end user has a right to listen to (an MP3 representation of music transmitted over a network) to which he or she has purchased the right to hear (a CDDA representation of music stored on a compact disc).

The mechanism by which the space- and format-shift occurs ought to be irrelevant.

Arguing that it matters who/when/how the rip took place is like saying that it's legal to grow peas in your own garden and store them in your freezer for the winter, but illegal to purchase peas grown and frozen by someone else from the grocery store.

(Visualize whirled peas! :)

Re:Reasonable

[Eccles]

So if I borrowed 100 CDs from a friend for an afternoon and registered them, then returned the CDs, I would be able to listen to music I hadn't purchased.

But you could do exactly the same by ripping the CDs, or copying them to audio tape, and none of the devices involved could tell whether you were legally entitled to do so. Now certainly you couldn't do this in an afternoon, but devices that speed up the copying job (such as high-speed tape dubbers) are not illegal. A hardware/software combination for computers that likewise sped up this process would also not be illegal.

Re:Reasonable

[C R Johnson]

Don't you mean "Visualize World Police" ?

Re:Reasonable

[aenea]

I think the distinction here is that even if you do own the CD's, you didn't rip and convert them to MP3 and upload the to MP3.com. It's not "your" music that you are listening to. MP3.com owns the copy of the music that people listen to when they connect to my.mp3.com and they are playing it for you, presumably, to make some sort of profit.

Whether people own a copy of the music they are listening to or not doesn't really seem relevant, the copy that comes from my.mp3.com isn't theirs.

The decision doesn't affect what sort of peas you can store in your freezer. All it means is that the seller of the peas has to compensate the grower of the peas when he sells them you.

If you want to time and format shift your CD's, there's nothing here to prevent it. Rip them and put them on a streaming server that only you have reasonable access to.

Re:Reasonable

[StenD]

It was my understanding that MP3.com's service allowed a user access to only his/her own legally purchased music. That is, if I uploaded Mozart and you uploaded Beethoven, I could listen to my Mozart over the net, from anywhere in the world. ...
That's not like your freehtmlbooks.com example.

Users of my.mp3.com didn't upload their own mp3s, but inserted a CD into their computer from which a checksum was made which "proved" that they posessed the CD, and mp3 gave them access to the music. That's the same as my freehtmlbooks.com example, where the copyright page of the book takes the place of the checksum (this isn't so far-fetched - O'Reilly uses the title page for proving eligibility to "upgrade" their books. Although you have to send them the page, you can certainly resell the remaining book). Just like you can borrow a book, you can borrow a CD, so the CD checksum proved nothing more than a photocopied copyright page would.

It's more the equivalent of e-mailing something to yourself, so you can pick it up in another real-world location.

Except that you're not sending the music, you're just getting access to a repository where the music is stored. The problem, legally, is that mp3.com doesn't have the right to permit access to the repostitory.

My Mp3 Storage is closer to what you're thinking my.mp3.com is, as you have to upload the mp3s that you want to make available. I'm surprised that RIAA hasn't gone after them yet, though, as they encourage you to share and trade the mp3s.

This is why I don't understand the ruling; there doesn't appear to be any copyright violation, really. I'm allowed to make a copy of a CD for my own use.

Correct. You are allowed to make a copy for your use. However, mp3.com is not allowed to make a copy for your use.

Re:Reasonable

[Jon-o]

Is this really what the law says???

Why would a CD-R in a computer be different from a standalone CD-R? This is ridiculous.

Re:Reasonable

[FreezerJam]

So, would this get around the problem?

1. Compress the entire CD to a single code, likely using asymmetric crypto and a hash function.

2. Send the compressed information to My.MP3.com

3. My.MP3.com decompresses the code back to the original CD. [1]

4. They compress the CD down to MP3 and store it for you to retrieve at a later date.

[1] This is a very special decompression technology. The first time it is asked to decompress a CD, it also needs the CD information. But, being an adaptive algorithm, all future attempts to decompress the same information run a lot faster.

What is key here is that you do NOT identify the CD and then attempt to authenticate the presence of the CD. You must provide the compressed information that you wish to store and hear later.

Re:Reasonable

[BeBoxer]

I think the judge is thinking of this in the commercial domain. I believe that copyright law often distinguishes between things that are OK for private individual to do for personal use, but not OK for a corporation to do for profit. For example, can I turn up my stereo really loud so that I can hear my tunes in the front yard? Certainly. No judge in the world is going to have a problem with that (unless it's a noise violation in your town.) Now, suppose that I turn the stereo way up and begin charging people a dollar a piece to sit in my front yard and listen to my stereo. Think the judge would mind? Almost certainly.

In the same vien, do you think a judge would mind if I rip my own CD's and put them on my personal web server on my DSL line or whatever so that I can access it (via password or whatever) from work or wherever? Almost certainly not. But this isn't what my.mp3.com was doing. Imagine a company that begins making tapes of CD's. Now imagine that it begins selling these tapes without getting permission from the copyright holder. But, the company says, we only sell the tapes to people who show us their copy of the CD! Do you think the judge is going to care? No. They are selling illegal copies of copyrighted material. Just because an individual is allowed to do something for personal use doesn't mean a company can do it for profit.

Re:Reasonable

[mariet]

But simply inserting a CD into your computer once doesn't prove you purchased it. The way it worked was that the first time you wanted access from a computer, you insert the original CD into your drive and register it with my.mp3.com. Afterwards, you can listen to it without the CD.

So if I borrowed 100 CDs from a friend for an afternoon and registered them, then returned the CDs, I would be able to listen to music I hadn't purchased. Hence copyright violation... they can't really guarantee that users have purchased the CDs, just that they had them in their possession for a minute or so.

This isn't about whether or not folks were in "Bad Faith" trying to fake out MP3.com. Folks will always do slimy tricks, it's no different than that same guy borrowing his friends 100 CDs and ripping illegal .mp3 copies for himself.

A person who is committed to circumventing the law and fair use could also give away his user id & password to all his friends so that they could all illegally listen to his CD collection on MP3.com.

There're probably a dozen ways a person could use and abuse "ANY" system (a system with MP3.com and/or a system without), to circumvent fair use. That isn't MP3.com's fault and they shouldn't incure any undo liability because there're deceiptful and dishonest people in the world.

Of course, you or I shouldn't have to pay a royalty charge with every single blank tape that is sold over the counter, on the presumption that we are going to make an illegal copies with them. I mean there are a hundred valid uses for blank tape, & we're all taking about fair use right? Unfortunately, we do pay a nominal royalty fee with each blank tape, video and audio. As a culture we've been found guilty until proven innocent by an industry who is incredibly wealthy and irrevocably determined to buy whatever laws it needs to maintain a strangle hold on artistic media. That is how it plans to guarantee it's continued wealth. Y'all may want to read the /. item about the Corporate Republic posted yesterday... it talks a lot about this kind of thinking.

Anne Marie

"A friend of mine passed away last Saturday... her name is Bonnie, and on her deathbed, she created a new nonprofit organization, and filled it's board of directors. She must have said goodbye to dozens of people. She laughed and joked and played with the people she loved. Sick as she was, she went out more alive, than most of the cut and dried, half dead SOBs I see walking the streets this very day. I wanna live and then go out like that. Kicking hinny and forgetin' names cuz I just don't have the time to bother." - Me

Re:Reasonable

[phil reed]

Despite what you say, mymp3.com was distributing CDs. Doesn't matter if you already owned the CD - you weren't listening to your copy, you were getting another copy from someone who was not licensed to distribute it to you.


...phil

Re:Reasonable

[bendude]

"It would be different if mp3.com was a repository for mp3s people made themselves and uploaded"

Did mp3.com make these MP3s themselves and then upload them to their server, or did they get someone else to do it, or did they click their fingers and the MP3s magically appeared on their servers?
Do you know something we don't about mp3.com's magical prowess?

Re:Reasonable

[bendude]

What the hell is wrong with this forum???
Ooooh, the law was right. We must agree that mp3.com had the law against them.....

BULLSHIT!!

I, for one, live in this society that is a result of all these "money talks" laws, and I am getting pretty pissed with the amount of freedom I DO NOT HAVE.
Where did I see that article, during the week, about how a police state must take it's grip slowly so that the subjects have nothing to compare the experience to?
Every week I'm seeing another example of our (what anyone new to the planet would take as natural) rights being eroded by organisations desperately trying to cling to the power they once had.
We, the bottom line people, are the ones who are now getting a say in our lives and everytime someone comes up with a new freedom, it is crushed from above.

Re:Reasonable

[bendude]

Yep, about an hour ago it occurred to me that RIAA could have easily set this one up. It happens all the time.

Re:Reasonable

[bendude]

A CD is nothing like a book. A book uses paper as the medium for storing the information which is passively transmitted to the users eyes via light particles. Meanwhile, a CD uses plastic as the medium for storing information transmitted to the users microchip for conversion to an analogue signal which will finally force speakers to change the local air pressure and transmit to the user's ears. This runs through a maze of electrical circutry on it's trip and the law has now started to limit the paths that can be taken through that maze.

Re:Reasonable

[MarkKomus]

I'm not sure how MP3.com got the mp3s, but I do know for a fact they are not made from your CD and sent to mp3.com to play back to you, which is the only legal way to do it. The mp3 I stream to play from my.mp3.com is not a mp3 I made myself.

Hello Hemos!

[FascDot Killed My Pr]

"from the finally-something-to-post dept"

You don't have anything to post? How about this? It's a description written by those responsible of how they cracked apache.org.

What? apache.org was cracked?? Yep--yet another story Slashdot apparently declined to post. (those who submitted respond to this post so we know you're out there)
--
Have Exchange users? Want to run Linux? Can't afford OpenMail?

Re:Hello Hemos!

[legoboy]

Excuse me, but who gives a fuck?

Another web site was hacked. Next item in the news: Life goes on.

The people who care about what was hacked and what wasn't can get their news from other sites. I gather (since dozens of comments over the past years have said as much) that attrition.org likes to mirror defaced websites. If that's their niche, they'll probably do a better job covering it than Slashdot does, anyway.

Do you really need to see dozens of misinformed "Ha! Open source is insecure by nature." comments, followed by dozens of karma-whoring followups that say "No, actually, it was hacked through some odd insecurity in Bugzilla. Security through obscurity never works. With open source, we can fix it ourselves, rather than wait for Microsoft to release a patch two months later." (Score: 4, Insightful)

Please... (Why do I know anything about it in the first place? Other "news" sites covering it, to my annoyance.)

------

Re:Hello Hemos!

[Kintanon]

You don't have anything to post? How about this? It's a description written by those responsible of how they cracked apache.org.

What? apache.org was cracked?? Yep--yet another story Slashdot apparently declined to post. (those who submitted respond to this post so we know you're out there)


On the main page if you will look to your right and then down the side of the page you will see under 'Science' for some odd reason, the story about the Apache.org crack. Please, be sure of your facts before you post.

Kintanon

Re:Hello Hemos!

[Pfhreakaz0id]

And we all know M$ security blunders never make it on the front page right?
---

Re:Hello Hemos!

[RickHunter]

Give me one good reason why Slashdot should have to post any story you or other submit? Remember, there's a limited amount of stories they can run a day. Yes, I agree that apache.org being cracked might be a good story. It depends. Taco/Hemos may not. And the finally-something-to-post could be referring to an official announcement about the MP3.com.

Slashdot is a private site. If you don't like the way Taco and Hemos are managing it, no-one's stopping you from starting your own.

No offense intended, but I'm getting a bit tired of people who get moderated up for "Slashdot ignored my world-shattering story!" or "Slashdot sucks" posts. Yes, you have a right to free speach. But that means I can also criticize you.

-RickHunter

Re:Hello Hemos!

[TheReverand]

If they ignored every website hacking then it wouldn't matter. However, In light of the recent storie(s) about the IIS "backdoor" this story should have gotten just as much front-page attention. It only goes to show that this site is ultimately biased. Fine, I don't care but I want to hear about ALL security problems on the front page, or none of them. Zealotry becomes noone.

-Marc

Flame all you want, I'll post more.

Re:Hello Hemos!

[legoboy]

Just because Slashdot screwed up by posting an incorrect story about the "Hated Enemy" doesn't mean that they need to redeem themselves by posting something bad about the home team. They did though, even if it is hiding in the Apache section.

Referees in sports are instructed to not feel they need to make up for what may have been a bad call against one team/player. Sometimes the bad calls all go against one side, sometimes the other. That's just the way luck runs. You can't do anything about it.

I believe the reader is familiar with the saying "Two wrongs don't make a right"?

------

Re:Hello Hemos!

[TheReverand]

No you misunderstand, I thought that the MS story was valid in the first place. My point is if that if they are going to post stories about security flaws I want to see all the stories not just ones that make Linux look good. And now that I have posted the exact same thing twice I hope I get a -1 for redundant.

-Marc

Flame all you want, I'll post more

Re:Hello Hemos!

[legoboy]

Okay, gotcha. And that's a little bit too much faith in this site's moderation system.

------

Re:Hello Hemos!

[RickHunter]

The folks championing Open Source try to ignore it.

Would you please tell me why anyone championing Open Source or Free Software would want to do that? One of the points of those licencing systems is that bugs are easier to find, easier to fix, and less damaging. A server admin with Apache can go in and patch it. Wheras with a closed server program, you've got to wait until the publisher decides to stop denying the problem and issue a fix.

I won't deny that Cmdr. Taco and Hemos have their own agenda. But remember that them not choosing to post a story could have reasons behind it that aren't related to some huge communist conspiracy.

-RickHunter

Re:How will this affect everyone?

[MouseR]

[...]let's say that courts judge mp3 as being an illegal file format and it must cease to exist. Can they really make that happen?

The issue here is not the file format. It's what's being done with it.

If that were the case, then jpeg file format would not exist because of child pornography.

Simple solution.

[ColonelNorth]

I guess what they need to do is also review the songs themselves... If they wrote a simple 3 line review of each song (or better yet, randomly generated the reviews based on artist, song title, and genre) that would better fit the fair use arguement...
"They Might Be Giants, with their song They Might Be Giants is a great example of what Metal should be." Something lame like that...

Re:Simple solution.

[PuntaConejo]

Or perhaps they could require that all people who make a CD available would also have to write a short review of the CD, or at least check a few checkboxes to rank the CD. Then MP3.com is primarily providing music reviews, and just including the music to help illustrate the review. That would be a lot closer to fair use, and it might actually provide some additional useful content.

MP3s are good, Record Labels are bad.

[WuTangClanner]

I am an avid supporter of MP3s. I have not purchased a CD or album in over a year. And the more the record companies fight this new technology, the less and less I will want to purchase music from them or their artists. If they would distribute mp3s under their labels, then I might consider purchasing from them again. Thats just my opinion.

Re:MP3s are good, Record Labels are bad.

[havardi]

I haven't bought anything besides computer hardware in over 3 years. I have $5k in appz and $3k in mp3z. If they don't backoff... I'm.....Going to Pirate even MORE! So there!

Re:MP3s are good, Record Labels are bad.

[cvillopillil]

Sarcasm doesn't become you.

This is just stupid, this comment of yours.

Music has a place in society, but it isn't something to be awed and revered, and neither are its practitioners. Why should music be held in such high reverence? Why is it that singers get millions while teachers scrape by on meagre pay? Music fanatics, shut up. Don't be such whiny morons. I'll download MP3's if I want to. You're probably the same people who want to see 0.004% of the world extremely rich, 90% poor, the remaining percentage persecuted for being different. Sounds like a great plan - a corporate enterprise to supress the world. FUCK OFF. I DONT WANT TO BUY YOUR CDS AND MAKE YOUR CORPORATE RECORD LABEL RICHER.

Re:MP3s are good, Record Labels are bad.

[Sloppy]

I am an avid supporter of MP3s. I have not purchased a CD or album in over a year.

[I infer that means that you download MP3s as an alternative to buying CDs.]

Ugh, you're part of the problem. You're the reason that RIAA/Metallica/etc are attacking technology. You have justified their behavior.

If they would distribute mp3s under their labels, then I might consider purchasing from them again.

Well, at least that's a glimmer of hope. Make sure you get the message across to the musicians whose work you enjoy, and maybe some day they will see it as an option.

---

Interpretations of IP

[Stickerboy]

Ouch. The way Rakoff explains it, when you purchase a CD or other recording, you purchase the rights to just that copy of the IP. It means that mp3 players and converting music to mp3s are pretty much illegal, unless the record labels and artists themselves give explicit permission otherwise, whether through a blanket authorization or case-by-case. I'd be interested if anybody who studys IP case law can cite other cases where this view of IP is contradicted.

Either that, or hope the record companies are generous enough to loosen the rules of "what you can do with that $13 CD".

telnet://bbs.ufies.org
Trade Wars Lives

Re:Interpretations of IP

[Mindwarp]

OK, first off IANAL.

Now that's out of the way...

Fair use allows us to 'space shift' (i.e. duplicate for the sake of changing the playback format/medium) works purchased by us for our own personal use. I don't believe than anything in Judge Rakoff's summarization contradicts that on a personal use basis.

I think what has caused the adverse ruling against MP3.com is that they had effectively duplicated and broadcast the artists IP without the artists or recording label's permission. We're not talking fair use, we're talking re-broadcasting. Ultimately this is all coming down to the fact that mp3.com were extracting value from the artists IP without being under license (how many extra CD sales did MP3.com process due to this / how many extra site-hits did they score?)

Just my take...


--

Re:Interpretations of IP

[wdball]

Actually, it is completely legal (and enshrined in case law) to make copies of music that you've purchased. The difference is that these copies must be for personal (that is, non-commercial) use. This was established back in the days of analog tapes--you can make a copy of something to take in the car, and you can even make an mp3 to listen to music at work. The difference is that mp3 was profiting from this service. If you want to make mp3s that reside on a server that only you can access (like a password-protected x-drive), that's completely legal.

Re:Interpretations of IP

[Cannonball]

Not entirely the case. Rakoff was more interested in someone else (aside from the purchaser) repackaging the product in a form exactly like the original, but without giving the group any real credit for the thing. If you were to do this in your own home, it's a personal copy for backup's sake, if worse comes to worse. As long as you own the original recording, just xfering it to MP3 isn't illegal.

Re:Interpretations of IP

[Kaa]

when you purchase a CD or other recording, you purchase the rights to just that copy of the IP

Yeah, sure. Always been that way. What else did you expect?

It means that mp3 players and converting music to mp3s are pretty much illegal

Nope, that doesn't follow at all. The right to make copies in different formats for your own personal use is pretty much established. For example you can take your CD and copy it to a cassette so that you can listen to it in the car. This is a format shift and happens to be perfectly legal. Ripping a CD is exactly the same thing. What's illegal is publishing your music (such as putting it on Napster).

hope the record companies are generous enough to loosen the rules of "what you can do with that $13 CD"

You know, man, I have a nice bridge that I'm willing to sell you for not all that big of a sum...


Kaa

Re:Interpretations of IP

[StenD]

The way Rakoff explains it, when you purchase a CD or other recording, you purchase the rights to just that copy of the IP. It means that mp3 players and converting music to mp3s are pretty much illegal, unless the record labels and artists themselves give explicit permission otherwise, whether through a blanket authorization or case-by-case. I'd be interested if anybody who studys IP case law can cite other cases where this view of IP is contradicted.

Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984) covers the use of VCRs for time shifting. However, as RealNetworks noted in their case versus Streambox, Sony covers personal copying, like what you are discussing, whereas the mp3.com case covers commercial copying. I'm not sure if the Diamond Rio case touched upon the DMCA or the personal use question.

Re:Interpretations of IP

[Anonymous Coward]

Ouch. The way Rakoff explains it, when you purchase a CD or other recording, you purchase the rights to just that copy of the IP. [...] I'd be interested if anybody who studys IP case law can cite other cases where this view of IP is contradicted.


Sure. This view of I"P" is completely wrong. There is something called the "first sale doctrine" which is what prevents copyright holders from banning (for instance) used book & record stores (which they would love to do) -- this ensures that once you buy a piece of I"P" you own it and have the right to use it, sell it, transfer it, etc.

Two famous cases: There was a case against Sony's Betamax in which the Supreme Court ruled that viewers have a right to use a VCR to "time shift" programming that they otherwise have a right to see. The court wrote:


One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home, or have enacted a flat prohibition against the sale of machines that make such copying possible.


More recently, the RIAA sued Diamond Multimedia over the Rio portable mp3 player, arguing essentially that music owners don't have a right to translate music they've bought into another format and listen to it that way. RIAA lost; the court said consumers have a right to "space shift" content they already own.

Which is what makes the mp3.com case so totally puzzling. Apparently, based on the Rio decision, it should be legal for mp3.com to run a functionally equivalent service (like idrive.com) where I upload encoded copies of music I own in order to play it back later. But because mp3.com takes care of the encoding for you, rather than requiring you to upload the entire thing, their service is illegal. This seems a completely nonsensical distinction, since the two services are essentially the same, but for one implementation detail.

Re:Interpretations of IP

[jesser]

What if mp3.com sent out corrections as its users ripped the CD themselves? The client would do something like checksum the music every 10 kilobytes and ask mp3.com what blocks it got wrong. For each corrupted block, it would either re-rip the segment, download the correct version from mp3.com, or upload the corrupted block and then download a diff.

--

Re:Interpretations of IP

[teal_]

Simple question:
Say I rip all my favourite tracks from all my CD's and archive them onto CD-R's in MP3 format. Is it legal for me to _give_ copies of that CD-R to my friends? After all, it's just a gift then isn't it?
On the other hand if I sell it, or sell it for more than the media is worth, then I agree that would be shady.

Re:Interpretations of IP

[schussat]

I guess I'm learning something about "fair use" -- I didn't know it could be constituted by essentially making some value-added transformation of the product.

On that note, however, couldn't mp3.com argue that it is making a substantive contribution to the music by doing things like allowing users to generate playlists? The average joe, sans CD-burner or DAT or extensive amounts of time ripping his own CDs, can mix tracks, retaining relatively high high quality, and take them anywhere. It seems to me that that kind of argument really would point to a value-added service from my.mp3.com, one that goes beyond simply a "space shift."

-schussat

Re:Interpretations of IP

[Jon-o]

How about this rather silly analogy:

You give your CDs to a company that has a network of bike couriers. Anytime you want to play a CD, your CD is carried to wherever you call from, so you can put it in a cdplayer and listen to it. Of course, you pay a slight fee for this service.

Is that illegal?

What about cd CASES - are they illegal? What about CDplayers themselves?

It's not illegal to sell a product or service which allows people to use the IP they are entitled to use.

All of these definitions are hopelessly mixed up though. I've read interpretations of internet sites with music that treat the hosted files as selling, broadcasting, preforming, or other things, each of which is subject to slightly different laws. Of course, the reality isn't really any of those. However, all of those are moving closer to that integrated "general digital signal" that could come from anywhere and carry anything. Having different laws is becoming rather redundant.

Re:Interpretations of IP

[JustinWeb]

I feel MP3.com should be allowed to openly distribute copies of MP3's. They are charging for most of these MP3's, other than small-time bands seeking promotion. They should then pay loyalties to the contracting record labels of each artist. Without burning full-length CD's, I do not understand how MP3.com can be liable for cheating musicians out of their money.

Justin

Re:How will this affect everyone?

[br4dh4x0r]

It would be ludicrous to outlaw a file format. That would be like a ruling that no one can make/own .AVIs because you can watch copyrighted movies in that format. Or that .EXEs are illegal because they can contain dirty h4x0r code and cause catastrophic loss of corporate money.

Then again, we are talking about the American judicial system. *knocks on wood*

love,
br4dh4x0r

What's the difference?

[(void*)]

Rakoff disagreed with MP3.com's argument that its music service is the "functional equivalent" of storing CDs that had already been purchased.

"In actuality defendant is replaying for the subscribers converted versions of the recordings it copied, without authorization, from plaintiffs' copyrighted CDs," Rakoff wrote.

Judge Rakoff seems to ignore that fact that the digital copies are nearly indistinguishable. I say nearly becuase we all know that the ripping process is not perfect, that some amount of noise and loss must be endured. MP3 is a lossy format after all. So there is nothing wrong with MP3.com's argument. I don't see how he could disagree, since MP3.com could have gotten these copies from the legal distributors and done the same. Does that mean that the my.mp3.com service is noe legal?

The fact of what the plaintiffs did should not matter, since the copies are virtually identical. I think Rakoff is just confused.

Don't get me wrong, I think MP3.com does not have case. But this just does not seem like a relevanty argument at all.

Re:What's the difference?

[Kaa]

Judge Rakoff seems to ignore that fact that the digital copies are nearly indistinguishable.

Not at all. It's a difference of opinion: you say that digital copies are all the same and any copy is as good as any other copy. Rakoff disagrees: he distinguishes between copies on the basis of their ancestry. This is a perfectly valid viewpoint.

In the MP3.com case, Rakoff in particular makes a legal distinction between a copy that MP3.com made itself (call it copy1) and a copy that a user owns (call it copy2). The way MP3.com used to work is that if you can prove to it you have copy2, it'll play copy1 for you. Now, from an information-theory point of view, copy1 and copy2 are very, very much alike. Legally, however, they are quite different, since different entities own them. Rakoff pointed out that difference, and was correct IMHO.

Kaa

Re:What's the difference?

[(void*)]

This makes very little sense. If I show you two identical balls, and then try to sue you for stealing one which I say is free, and the other, which I say is mine, what would you do?

That is exactly what the argument is about. For listening purposes, one copy is as good as any other. To say that I use one but not the other is just looking for differences where there aren't any. If you took the principle to something else like source code, the copies are perfect and identical. You cannot GPL one and not the other!

Or think of it another way. If MP3.com took the pains to pay royalties to RIAA (an amount to their satisfaction), I don't think there would be any complaints about the "lineage" of the copies.

Not convinced? I can think of more hairy situations that could arise ... such as you downloading a song from a public ftp server. You did not know it is a copyrighted song, and that was placed there by some warez d00d. Now when you find out, you try to pay the author fairly. But the author refuses to accept the money and sues for more damages, claiming that you copied from a "tainted" source, and should have gotten "clean" copies from him, despite there being no difference.

This is just opening a whole big can of worms.

Re:What's the difference?

[Kaa]

This makes very little sense. If I show you two identical balls, and then try to sue you for stealing one which I say is free, and the other, which I say is mine, what would you do?

Huh?

You show me two identical balls, tell me one is free and one is not, and offer me to take one? I would ask you which one if free. If you tell me it makes no difference, you cannot sue me afterwards because you yourself stated that from your own point of view (and you are the owner) there is no difference.

In this particular case the owner clearly believes that there is a difference between two different copies.

Try a different example: both me and you have a certain file, bit-for-bit identical. I can delete my copy, right? Can I delete yours? No? Why not -- they are identical copies and you are telling me it makes no sense to distinguish between them. In this case I can delete any copy I like, including yours.

Kaa

Re:What's the difference?

[john_many_jars]

Just looking at what happens to the music obscurs the difference.

The ruling said it was repackaged and distributed again. How does mp3.com make money? Hits to their website. So, if you do use their copy of your CD, while you have the right to listen to it (note: this was not covered in the suit), they do not have the right to distribute it. They are making money off of distributing these things. That is what is illegal.

Or at least, how I explain the repackage and distribution verbiage in the ruling. Not that they have the copies, but distribute them.

Re:What's the difference?

[(void*)]

Sorry, I was not very clear. I show you two balls, and say one is mine, the other is not, and is free for you if you want. I give no indication of being able to tell which is which. (Assume you have done some tests that this indeed is the case. But you let me continue to believe so.) One day, I wake up to find one ball in your possession. Can I raise hell?

Your other example is flawed. I am not free to delete your file, becuase that would be depriving you of what you have. You must remember the key point here - copying digital music does not destroy the original. The more interesting siutuation where copyright laws may apply is if you lost one file, and ask me for copy. Whether I could give it to you or not depends on who own the copyright of the file.

The UCITA for example was protested vehemently by many slashdotters because of the clause where software owners can remotely disable software. I don't think copyright owners can delete your files just like that, because of copyright violation. They must go through the long process of suing you before they can deprive you of their software.

Re:What's the difference?

[Tackhead]

> It's a difference of opinion: you say that digital copies are all the same and any copy is as good as any other copy.
> Rakoff disagrees: he distinguishes between copies on the basis of their ancestry. This is a perfectly valid viewpoint.

I'm glad you're taking up this side of the argument; I hold the opposite view, namely that from an information-theoretic point of view the files are identical, and that lineage is (and ought to be) irrelevant.

My argument goes as follows:

If the purpose of intellectual property law is to safeguard the interests of the owners of said IP, and the IP in question is a bitstream on a shiny metal disc, then the information-theoretic point of view trumps lineage.

If the objection is piracy and the goal is the protection of the revenue stream of the artist and record label, the purpose of IP law should be to make the bitstream (or substantially-identical copies thereof) scarce - to restrict access to bitstreams to those who have paid for access.

This implies to me that what matters is whether the listener has paid for access to the bistreams on the CD. I fail to see where lineage (who does the ripping/encoding/uploading) enters into it.

I would be very interested in reading your argument in favor of the thesis that distinguishing between copies on the basis of their ancestry is a Useful Thing.

If the purpose of IP law is to stop piracy, how does a lineage-centric interpretation of the law (third-party-encoded MP3s / mp3.com bad, but user-encoded-and-uploaded / myplay.com MP3s good) help meet that goal, when an information-theoretical-centric interpretation could be used to attack (or defend) both the models behind mp3.com and myplay.com?

Re:What's the difference?

[Golias]

They are making money off of distributing these things. That is what is illegal.

IDKIYAAL (I Don't Know If You Are A Lawyer), but does that mean if we put together an ad-free "free beer" version of my.mp3.com (and relied on memberships or donations to pay the hardware and line costs), that this ruling would not apply to us?

Re:What's the difference?

[Sloppy]

I would be very interested in reading your argument in favor of the thesis that distinguishing between copies on the basis of their ancestry is a Useful Thing.

I'll take a shot at that.

Let's say that I have written a closed-source BIOS. You want to create a competing and compatable BIOS.

You hire a reverse engineer to disassemble my code and write specs. Then you take the specs and write code that conforms to 'em.

There's the possibility that some of your code may be identical to mine. Granted, the larger and more complex things are, the less likely that is to happen. But it's possible that routines that do simple things may be byte-for-byte identical.

If ancestry doesn't matter, then you have violated my copyright. If ancestry does matter, then you're in the clear.

---

Re:What's the difference?

[ecampbel]

Wow! What a great response. I think you addressed the issue perfectly.

Re:What's the difference?

[Tackhead]

Sloppy: Your example of reverse-engineered BIOS is excellent!

I'm not sure how/if it applies to this case - but it certainly does prove (contrary to my thesis) that there exist at least some circumstances in which ancestry matters. Whether this case is such a circumstance is something I'd really like to see the judge look at.

Meantime, major thanks for the clue.

Re:What's the difference?

[Tim C]

If you took the principle to something else like source code, the copies are perfect and identical. You cannot GPL one and not the other!

<pedantic>
Yes, you can. As the code's author, you are perfectly at liberty to distribute it to different people under different licences. If I write some code, I can give it to you under a licence that forbids you from redistributing it, while at the same time giving it to someone else under the GPL.
</pedantic>

I do agree, however, with the sense of your argument - there sould be no difference between an mp3 I made from my CD copy of a song, and an mp3 of the same song, from the same CD, that some else made from their copy. As long as I satisfied them that I owned a legitimate copy of the CD before they gave me access to the mp3, I really don't see what the problem is.

Sure, people will abuse the system, but that is unavoidable, and occurs with any system, including the "system" of selling CDs. The only thing to stop me from borrowing CDs from my friends and copying them to tapes/CDs/ripping them to mp3s is my sense of morals. I don't not do it because it's impossible (which it clearly isn't) or illegal, but because I believe that it's wrong. The point is that you can't legislate against everything that is open to abuse, or you'll quickly find yourself unable to do anything.

Cheers,

Tim

Re:What's the difference?

[matthewp]

A couple other people seem to like your answer, and I'll grant you it's clever. However, it's not the same conceptually as MP3.com's situation.

In the case of mass-marketed music, my copy of a song, MP3.com's, and countless others around the world have the same origin. They all come from the same set of master tapes and result from the same creative act.

In your example, the two BIOSes were written in two separate creative acts and do not have the same origin.

You're equating the actual, ultimate origin of a copy with its detailed copying history -- which doesn't necessarily make sense. It would appear that US law does the same.

Re:What's the difference?

[john_many_jars]

Didn't think of that.. Of course, it's one of those hypotheticals that will never exist (you know of anyone willing to a) donate the hardware, b) donate the bandwidth, c) donate the administration time, and/or d) donate gobs of dough, then there would be a question worth haggling about.)

Re:How will this affect everyone?

[Tetsujin28]

Worst case scenario, let's say that courts judge mp3 as being an illegal file format and it must cease to exist. Can they really make that happen?

I don't see any way at all that this could happen, under US law. There are clearly many legitimate uses for the mp3 file format, so it can't simply be declared illegal because it can be used to violate copyright. There are many cases on this point; the first one that springs to mind right now is the Sony Betamax case.



"It's that guy!"

Protecting future markets.

[mikej]

Rakoff said any positive impact of MP3's activities on the recording companies prior market in no way frees the defendants to "usurp a further market" by reproducing the plaintiffs' copyrighted works.

It's unacceptable for MP3.com to move into and profit from a market that the RIAA-represented companies have failed to take advantage of, but Microsoft is in violation of federal law for doing exactly that.

Is RIAA _not_ trying to cut off mp3.com's air supply?

In a related note, when I buy a CD I'm not interested in buying a plastic disk with some reflective foil; I'm buying the _music_, and if a company wants to sell me a service that increases the situations in which I can make use of the product for which I paid so much, I think that's a positive thing.

--
Michael D. Jurney
spam@jurney.org
More fun than a barrel of scotch.

Re:How will this affect everyone?

[kmcardle]

Worst case scenario, let's say that courts judge mp3 as being an illegal file format and it must cease to exist. Can they really make that happen?
No. It is perfectly permissible to buy a CD and record it on tape so you can listen to it in the car. It wouldn't be much of a legal strech to cover MP3 on the same basis.

You only start running into problems when laws are being broken. :)
--
then it comes to be that the soothing light at the end of your tunnel is just a freight train coming your way

A Wish For A Better Explanation

[Lagged2Death]

I don't understand this ruling. MP3.com isn't making the copy of the music, after all - the users are. They're using MP3.com's tools and systems to do it, but the copy comes at the user's request, for the user's benefit. It seems very strange to me that MP3.com would even be forced into the "fair use" corner - they really are just a storage cabinet in this case.

Anyone have a link to the judge's own words, instead of just an article *about* the judge's decision? Maye the original document would make the litigator's arguments a little clearer.

Re:A Wish For A Better Explanation

[Mojojojo Monkey Inc.]

You must not have used the Beam-It software that my.mp3.com provides.. (difference between my.mp3.com and mp3.com by the way)

You're not copying anything at all. And yes, my.mp3.com bought thousands of CD's and made mp3 copies of all of them. All the user had to do was use the Beam-It software to "prove" that they "owned" a certain CD. After that, anything they listened to was provided by my.mp3.com, and not their own collection.

If a company like mp3.com is streaming these copywrited cd's, and is doing it without a proper license, they can be held at fault... it's a really fine line, and while many people agree that my.mp3.com is proving a good service, they're still violating current laws.

What was the Purpose of MP3.com

[xianzombie]

Wasn't the purpose to be a way to give new artists (and artists who support the mp3 movement)a way to get some publicity?

I know of several people have have bought the albums from these independent artists and it gives an alternative to paying $15-20 (USD) for a CD.

So where does the problem exist?

What is MP3.Com adding? Let's look...

[JoeShmoe]

1) If I only own an audio CD player, they save me the cost of having to buy a CD-ROM drive to play my music on my computer or portable system.

2) MP3.Com saves me the time it would take me having to extract all the digital audio from my CDs. Also, they are saving me the cost of having to buy a CDDA program.

3) MP3.COM is saving me the time and possibly bandwidth charges that I would incur by uploading my 200 CD collection. Nealy every high bandwidth connection is capped on the upload, which means it would be impossible for me to stream my audio to my computer at work from my computer at home. It would take me three months of solid uploading to get my entire collection online somewhere that I can download at the full 128/160/192 bitrate.

4) MP3.Com is saving me the time it would take to encode all my music to MP3 files, which are most definitely more versitile. They are also saving me from having to buy an encoding program.

5) This may not be a feature yet, but certainly MP3.Com could store multiple bitrates of my songs, so that I could custom tailor it for the device...64kbps mono for my Rio, 128kbps for my home DSL...192 for my fat connection at work.

6) MP3.Com is saving me hundred of dollars in media costs. I would need 12 GB of space to store my collection...and since this is 12GB of data that is READ-ONLY, that is a real waste of hard drive space. WORM media is a better choice, but you can't store 12GB on anything currently available.

It looks to me that an obviously technophobic judge has made a very, very narrow ruling that make very, very broad use of the word "repackaging". When you are talking about adding value, this "repackagin" is adding a lot of value. For him to dismiss all the above as just mere "repacking" is almost like say "I had a bunch of music I could only listen to at home on my stereo...yada yada yada...now I can listen to it any time, any where." That's a pretty big yada.

Oh, one other thing...how many companies out there keep separate copies of files for each user when they are the same file? Of course not, that's what links are for. It seems like MP3 could get around this problem by giving users the tools...having them encode all their music...then uploading it back up to MP3 (essentially doing the fair use part themselves). The end result would be no different than what you have now.

If I was MP3.com I would wave a magic wand and then tell the courts and RIAA "We didn't make that music. It was uploaded by hundreds of users who own the albums". Of course, they would have to "delete" any albums that no one had (yet) registered but assuming someone does, it wouldn't be too hard to suddenly "recover" it.

- JoeShmoe

-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= -=-=-=-=-=-=-=-

Re:What is MP3.Com adding? Let's look...

[RickHunter]

EXACTLY! This is the kind of Judge I absolutely cannot stand. The same kind that (IMHO) would rule that loading a computer program into memory would be copying it. MP3.com's service added a lot to the MP3's they distributed. Especially in terms of the time it would take me to rip songs from my CD collection. Now if that's not value-added, what is? And if MP3.com had charged money for the service, would anyone (meaning the RIAA) have objected so much?

-RickHunter

Re:What is MP3.Com adding? Let's look...

[Kaa]

1)... 2)... 6)...

Ahem. Your argument looks like this: "This is useful to me, therefore it must be legal". I leave it as an exercise for the reader to figure out the problems with this statement.

It seems like MP3 could get around this problem by giving users the tools...having them encode all their music...then uploading it back up to MP3

That should work perfectly well. It actually does work -- see companies like iDrive.

f I was MP3.com I would wave a magic wand and then tell the courts and RIAA "We didn't make that music. It was uploaded by hundreds of users who own the albums".

And go to jail for perjury?

You assume one digital copy is as good as any other digital copy. Legally, that's not true. To give you an example: let's say we both own some software that we fully installed on the hard drive and lost the installation disks. Can I delete my copy from my hard drive? Sure I can. Can I delete your copy from your hard drive? No? Why not -- all copies are the same, aren't they?

Kaa

Re:What is MP3.Com adding? Let's look...

[Tackhead]

> If I was MP3.com I would wave a magic wand and then tell the courts and RIAA
> "We didn't make that music. It was uploaded by hundreds of users who own the albums".

That's my problem with the ruling.

• Premise1: The aim of copyright law is to protect the IP of the owner
• Premise2: a secure technology which requires ownership of physical media is a good mechanism to ensure that the downloader has a license (in the form of physical media) to listen to the content embedded thereon.
• Premise3: Space-shifting is legit because it's fair use.
• Conclusion: Any technology which requires users to prove ownership of a piece of music before allowing them to space-shift ought to be, a priori, legit.

It should make no fscking difference whether MP3.COM does the ripping and asks you to prove you own the CD, or if myplay.com requires the end user to do the ripping and upload the MP3.

Since what's really happened is:

• Services like mp3.com which do the ripping for you and require proof of ownership of physical media are Deemed Naughty.
• Services like myplay.com which require the end user to do his or her own ripping and uploading as proof of ownership of physical media are Deemed Non-Naughty

And since:

• Nobody's seriously argued that owning the CD doesn't constitute proof that the owner has a right to listen to the content on it.
• Nobody's overturned space-shifting as fair use lately

I can only concluce that the first premise is false, and that RIAA really doesn't give a wet slap about consistent enforcement of intellectual property rights as anything other than a club to beat an old enemy, MP3.COM, into submission.

Am I the only one on the face of this earth who doesn't see a glaring inconsistency here? If it were about protecting intellecutal property, RIAA would be arguing that both mp3.com and myplay.com ought to be burned to the ground

You can't have it both ways.

• If you care for consistency in the application of IP law, you must conclude that either mp3.com and myplay.com are legit, or both are violating (or facilitating the violation of) copyright. I don't care which side of that fence you fall on - the as long as you don't try to have it both ways. End users who own media should be able to space- and format-shift, or they should not. In terms of protection of intellectual property, the mechanism is utterly irrelevant.

• Furthermore, if you reject this conclusion (that the method of shifting is irrelevant) on the basis of law - if you really believe that what mp3.com did is/ought-to-be illegal, but that what myplay.com is doing is/ought-to-be allowed - and you still pretend to give a damn about consistency in IP law, you must conclude that IP law as it exists on the books is fundamentally flawed and needs to be rewritten.

A final note to Judge Rackoff - and it's a pity we can't bring him in for an interview - but if we could, I'd like to ask him the following:

Is space- and time-shifting legal, regardless of mechanism, or not? To be sure, the law makes a distinction in terms of mechanism, and it's on those grounds that you've rendered your judgement. But you've utterly failed to explain why the mechanism matters in anything but the most narrow legalistic sense. In so doing, all you've accomplished is to bolster the argument that IP law as it exists on the books is hopelessly outdated and needs to be thrown out and replaced with something that accomplishes what it was intended to do.

Trying to pretend that mp3.com and myplay.com are somehow fundamentally different bespeaks a grave lack of understanding of what IP law was designed to accomplish, and with all due respect, brings both the law and your court into disrepute.

Re:What is MP3.Com adding? Let's look...

[mwillis]

If I only own an audio CD player, they save me the cost of having to buy a CD-ROM drive to play my music on my computer or portable system.

You need a cdrom to prove that you own the cd's -- they call it beaming. Once you have shown that you own the cd they will stream it back at you.

Re:What is MP3.Com adding? Let's look...

[Lucretius]

It should make no fscking difference whether MP3.COM does the ripping and asks you to prove you own the CD, or if myplay.com requires the end user to do the ripping and upload the MP3.

Actually, this would make a big difference if you look at it this way. A radio station buys a CD from the record company in order to play it on the air. Whenever it plays this CD, or a song on that CD, it pays royalties to the record company for the privilege to play the song.

Now, mp3.com has you prove that you bought the CD, then allows you to listen to .mp3's that they ripped. Then you are allowed to play this music from the site (w/o paying royalties). While they have checked to see if you own this music, they are in effect acting like the radio station by playing the music that you want. The key is that they are providing you with their copy of the music.

On the other hand, myplay.com makes you upload music that you have already ripped. You are allowed to manage and play your .mp3's, but all that myplay does is provide a place to store, rather than the service of shifting medium. To tie this in with the above, you are playing your copy of the music rather than theirs.

As far as I can tell, this is really where the problem lies. My.mp3.com provides with a copy that they made and myplay.com uses your copy. This may seem rather nitpicky, but it makes a big difference in the legal sense.

Now, as far as the IP law being rather inconsistent. That is another question. In my opinion, the law needs to be revamped in a serious way to deal with the new issues that have been brought up by these sort of cases. All that has happened so far, at least from what I can see is that the judge decided that they could differentiate between digital copies, and from that technically who owns them (and thus distribution can be regulated.

Re:What is MP3.Com adding? Let's look...

[Shoden]

Actually, this would make a big difference if you look at it this way. A radio station buys a CD from the record company in order to play it on the air. Whenever it plays this CD, or a song on that CD, it pays royalties to the record company for the privilege to play the song.

Now, mp3.com has you prove that you bought the CD, then allows you to listen to .mp3's that they ripped. Then you are allowed to play this music from the site (w/o paying royalties). While they have checked to see if you own this music, they are in effect acting like the radio station by playing the music that you want.

Except that the radio station allows you to listen to music that you haven't purchased.

Once you've purchased a copy of the music, it shouldn't make a difference if you uploaded a copy of the music to the server, or MP3.com allowed you access to a copy already there, as long as you prove you own your own copy.

Re:What is MP3.Com adding? Let's look...

[warkeng]

Maybe I'm unclear on the concept...but in the time that I have been following the controversy I have never seen a point like this raised.

To me MP3s are not the same as CR-ROM originals.
As every one knows, MP3 is a lossy compression format. So, you have a wav you extracted from an audio CD on your hard drive. You then convert the wav to an MP3. You then take the MP3 you created and convert it back to a wav. Now do a diff on the two files. They are not the same.

The real BIG stretch - I think this might qualify as repackaged. Hey look Hillary, the the copy is different from the original.

Side note for Canadians:
We now have to pay a tax^H^H^Hlevy on blank CDRs (as well as audio CDRs, tapes etc). Does this mean I can now burn those illegal MP3 to CDR with impunity?

That is what the RIAA's web site implies. It is still "illegal" to put the MP3s on the hard drive first as the RIAA get no royalities from hard drive manufacturers.

Like I said I may be unclear on the concept. So what else is new?

Re:What is MP3.Com adding? Let's look...

[Tackhead]

I'm not sure I understand you here.

The reason radio stations pay royalties is because they broadcast music to people who haven't purchased the shiny metal discs.

The reason I believe mp3.com should not have to pay such royalties is because they don't broadcast - they merely allow one-to-one transfer of licensed content from a server on mp3.com to your hard drive, given that you've proven you at one time had a shiny metal disc. No shiny metal? No music.

Your description of the distinction between my.mp3.com giving you their copy and myplay.com giving you your copy is "nitpicky but legally important" neatly encapsulates my problem with Rakoff's ruling.

If it's "nitpicky", then why are there multibillion dollar penalties associated with picking the nit with one tool, and no penalty for picking the same nit with the other tool?

If it's not nitpicky, why isn't myplay.com getting sued into the ground? It's precisely the same threat (in terms of users accessing unlicensed content and thereby threatening RIAA's revenue stream) as my.mp3.com.

Were I in Rakoff's shoes, I'd declare my.mp3.com guilty of the copyright violation in question, for which I'd award RIAA a judgement of $1.00 in damages.

In view of RIAA's willingness to attack mp3.com for using a method that's more secure than its competitors, while simultaneously turning a blind eye to every other file-storage system, I'd then tell RIAA's lawyers that the next time they set foot in my courtroom, they'd better be prepared to defend themselves against charges of barratry.

Re:What is MP3.Com adding? Let's look...

[Lucretius]

The reason radio stations pay royalties is because they broadcast music to people who haven't purchased the shiny metal discs.

Sorry about that, I hit the wrong button before I got back to rephrase that. While I admit that the radio station example is not the best in the world, it does have a bit of merit. Radio stations trasmit songs to both people who have purchased the music and who haven't. They make their money off the advertising rather than by the transmition of the song.

Now, my.mp3.com makes money in much the same way, except for the difference that they have some membership requirements (such as the prior purchase of the disk and net access). The real money that mp3.com, at least from my judgement, comes from advertising rather than any other source. Thus they are making money off someone elses intellectual property by making their own copy (ala the radio station making acopy to be trasmitted across the radio waves) and giving it to other people.

Now, as far as the "nitpicky" statement. I say that it is nitpicky because I don't agree with it. However, I am able to recognize its legal significance. According to the laws we have right now, at least from my non-professional or even really legally educted mind, there is a definite legal difference between what mp3.com does and what myplay.com does. Whether or not I agree with the way the law satands right now is beside the point.

In view of RIAA's willingness to attack mp3.com for using a method that's more secure than its competitors, while simultaneously turning a blind eye to every other file-storage system, I'd then tell RIAA's lawyers that the next time they set foot in my courtroom, they'd better be prepared to defend themselves against charges of barratry.

Again, I thik this comes back to having a legal argument to stand on. They are able to attack mp3.com because of how they did it. There must have been sufficient legal precidence to make the RIAA think they could win here, and I think it has alot to do with the legal structure under which radio stations operate.

The reasont that we haven't seen anyone attack any of the other file-storage systems again comes back to how they implement the system. By having the users upload their files, myplay.com is not responsible for anything but the storage and thus doens't get into trouble on these same grounds. While being "precisely the same threat" (a fact which I completely agree with), they have done it in a manner by which the RIAA hasn't figured out a way to fight yet.

LIke I said before, I think there needs to be alot of work done to redefine IP to fit with the changing medium, but nobody really seems willing to do it (either because the people who gain from it don't want to mess with it, or because the RIAA just wants to repress it rather than figure out how to use it to their advantage).

Re:What is MP3.Com adding? Let's look...

[Tackhead]

Excellent reply. Thanks. And yeah, I'm with you on the radio side - despite the fact that I think mp3.com had a valid defence here, the question of whether or not mp3.com was profiting off the service of providing "uploads" via a hash of some data blocks from the original CD, or off the playback of MP3 data was an interesting one, and there's a strong argument that mp3.com should have been cutting RIAA a piece of the action. Methinks mp3.com protests a bit too much, for instance, when they say they're only selling a "quick-upload" service.

What I find funny about the file-storage systems is that they're theoretically vulnerable to the same kinds of charges as Napster; that of contributory copyright infringement by facilitating a means whereby end-users can upload infringing content and access it from anywhere. (It's just not as blatant :)

I also agree with you that the fact that there is such overwhelming legal significance attached to this nit is evidence of an inherently self-contradictory legal system.

Fer that matter, I also agree that the main reason that it's not being changed is because the bugs work to the benefit of the monopolies, but I've been known to be cynical on occasion. OTOH, under our present legislative system, a wholesale throwing-out and restructuring of IP law would likely result in a set of laws so draconian that we'd see Richard Stallman begging for the tender mercies of the "goold old days" under DMCA.

Re:What is MP3.Com adding? Let's look...

[briancarnell]

MP3.Com broadcasts to both users who have registered and those who haven't. There are any number of ways to get around the MP3.Com protections, as others here have pointed out.

What MP3.COm has done is no different than the following: I scan in all of Stephen King's novels and make them avaialble on a web site, but in order to read them I require you to fax me the inside cover to prove you own it. Both this and MP3.Com's scheme would be serious breaches of copyright law.

Again, I think the way we all win is if we say that a) devices or software methods that allow individuals who already own a piece of software or music or whatever to make personal copies is completely legal (even though it will obviously be used by some people to pirate copies), but also that b) those who do use such devices to pirate and distribute illicit materials are in fact breaking the law. Punish *them*, not the technology.

Re:What is MP3.Com adding? Let's look...

[gus2000]

The repackaging that mp3.com does is certainly useful to people like you...

I do believe there is a loophole to the judge's verdict. The verdict is based on the fact that the copy you download is not the copy that you own. Why not replace the whole beaming concept with physical confirmation by mp3.com that you own the cd? It would work like this: you buy the cd, send it to them, they rip it and send it back. As long as they save the data in raw format (ie. NOT as an mp3), every copy they made should be identical. Therefore they only have to keep one copy around to make mp3s from (as they currently do). They could archive all of the raw copies from various people to prove that each disc passed through their hands and was copied from the person requesting the service.

This is in effect exactly what they do now, but beaming is replaced by physical manipulation. It is probably not a sustainable way of doing business because of the costs and inconveniences involved, but it would be an interesting legal test. I personally believe that the judge would have ruled in their favour had they used this technique. With a positive ruling they would be in better shape to move into new distributions forms and strategies. Without a legal victory at some point in the very near future, this company will be slowly but surely suffocated away.

Re:What is MP3.Com adding? Let's look...

[Chris Johnson]

Given that it is now clearly forbidden to take copyrighted material and redistribute it without permission... this cuts both ways, IMHO.

I am a musician and have mp3s up at mp3.com (as everyone knows by now ;) ). They are free unless you really want to pay for them or get a (spiffy) CD of them or reward me for working so hard on them... and I encourage users to exchange and copy them.

BUT! This whole court case seems to be establishing that (for instance) BMG or Sony or whoever CANNOT simply take my music and redistribute it on their own online music stores- depriving me of my share of the ad-banner revenue that I get at mp3.com etc. Without this ruling they'd have the same privileges as any user- and if things went well (or even if not) I could see my music being snatched up (it's 'free' after all) and used to bring people to Sony's site, or BMG's, or whatever, in future.

That's because they'd be taking advantage of their ability to redistribute. Now it is established that somebody like that has to come to an agreement before they can _distribute_ such material on a large scale- and I have the power as copyright holder and owner of the mechanicals (which I can still sublicense- mp3.com does not ask exclusive rights to them) to define the terms under which I make these recordings available.

This does really cut both ways. I realise it doesn't do that much for listener interests (I will do what I can to make sure I at least look after listener interests) but it actually can be used right back at the labels should they attempt to start blatantly using 'free indie mp3s' without coming to an arrangement- an arrangement where the contractual power is on the side of the copyright holder and owner of the mechanicals. The labels do NOT own ALL the music in the world...

FreeDrive etc?

[Anonymous Coward]

So does this ruling mean that if people put MP3's or movie trailers or copies of books on free internet drives like FreeDrive, iDisk or any of the hundreds of others out there, that those companies can be sued by the RIAA? I wish there was a law against irrational business practices that we could all sue the RIAA for violating.

There it is.

[mcrandello]

"Rakoff said any positive impact of MP3's activities on the recording companies prior market in no way frees the defendants to "usurp a further market" by reproducing the plaintiffs' copyrighted works. "

So from this should I infer that the Recording Industry is planning on setting up shop doing something similar, but charging us? At least it wasn't said that they were usurping the existing mrket of CD's, because if I understand how the service works then you had to have a copy of the CD to listen to any of it's tracks.

I think it's high time the copyright laws that allowed this ruling to happen are revisited. How can we see this happen?

MP3.COM ruling is good

[briancarnell]

Very reasonable ruling. MP3.Com was clearly stretching the principle of fair use way beyond the breaking point.

Same thing with Napster. Metallica should sue the users engaged in piracy rather than the service itself (their lawyers have it half right).

People who illegaly distribute MP3s should be punished but action shouldn't be taken against the hardware and software that (which, I believe, is largely the principle behind the denial of the preliminary injunction against Diamond/S3's Rio -- someone who downloads an illegal MP3 onto their Rio is breaking the law, but Diamond should not be held liable for that -- neither should Napster, but MP3.Com clearly should).

Re:MP3.COM ruling is good

[Wah]

So if MP3.com changed their service, let people upload MP3's that they could later listen to anywhere, you wouldn't have a problem with it? They tried to cut a corner and offer a better service, but we all know that YOU MUST PAY FOR EVERY SECOND OF MUSIC YOU LISTEN TO OR YOU ARE EVIL!!!!!!.

The law is the problem here, not the fans, not the people. The law needs to be changed so people like you who base all their moral judgements on it can have moral judgements that reflect reality as it is, not how the record companies tell congress it is.

--

Re:MP3.COM ruling is good

[AntiNorm]

Metallica should sue the users engaged in piracy rather than the service itself (their lawyers have it half right).

And just how are they going to go after the hundreds of thousands of individuals that are pirating their music? Are they going to file 335000 lawsuits? That would be very wasteful. No, it's not Napster's fault that people are doing this (hence the reason why they have no business suing Napster), but it would be a logistics nightmare to go after even a small fraction of the individual users who are pirating their music. This is more than likely the main reason why they're going after Napster and not the users -- because of the "world's smallest violin" factor that would be involved.


=================================

Re:MP3.COM ruling is good

[SuperKendall]

It's not a tool for piracy! Or at least not a very good tool. I (and a lot of other co-workers I know of) house a lot of our CD collection there, I really like it as it means I don't have to cart a lot of CD's back and forth to work. And yes, I've only beamed my own CD's there.

If they shut down my.mp3.com, I'll just have to rip my whole CD collection, and place it somewhere I can get access to from work - which means other people might be able to break in as well and grab what they like, as I don't really have the time (and now, certainly no motivation) to create a totally secure storage environemnt.

Furthermore a couple of people I knew were thinking about putting together a pool of MP3 files at work, but there was really no point with my.mp3.com availiable - now I'm sure they'll probably go ahead with the plan. And I'm also sure that'll be repeated across the country at work everywhere, which actually means a great increase in the number of illegal mp3 files floating around.

Time to implement an alternate mp3.com that lets users rip pieces of CD's and upload them until a whole CD is aquired. Then there's no storage phase on your part and RIAA has to go after you on the real issues.

Re:MP3.COM ruling is good

[SuperKendall]

No, not really - jobs are easy enough to find.
I'm talking generically anyway, it doesn't matter so much that it may or may not happen at any one company as that it WILL happen contrywide (indeed, it is to some extent already).

I am doing my work, I just work better when I have music!

mp3

[.sig]

Not a very happy development for mp3's.
Under the laws, mp3's are pretty much illegal in all cases. But, then again, so is speeding. I don't feel like a criminal, go figure...
I can't argue that, but that doesn't mean that it's a good law. mp3.com wasn't doing anything that would break the spirit of the law, it's just a bunch of people with nothing better to do who want to piss off as many people as possible. (Or so it seems... I mean, I still don't see what harm mp3.com was doing to anyone. If you own the cd, there's nothing wrong with having access to it without carrying it with you 24/7.)
(napster, on the other hand.... I hardly use it, since my computer at home is so old it can't play mp3's, but that's just like the banks opening their vaults and expecting people to only take what's thiers.... that'd work....right)

Re:mp3

[briancarnell]

MP3s aren't illegal at all. What is illegal is to distribute MP3s if you don't have permission from the copyright holder, which was what MP3.Com was doing.

Re:mp3

[cfulmer]

So... It seems to me that it's only illegal to distribute copies of a work to people who are not licensed for that work: I can take my favorite book to the photocopier, but I can't give the photocopy of the book to somebody who doesn't already own a copy of the book. (unless I also give that person the original and every other copy I've made.)

My understanding is that the my.mp3.com service verifies that the clients actually own the CD, so I don't see where the problem is. It sounds like the recording industry has successfully convinced a judge that fair use should be banned.

Re:mp3

[Chris Johnson]

_Thank_ you :)

perfectly legal mp3s including some new ones hot off the sequencers

Brian couldn't be more right. This is about mp3.com's ability to use other people's music without compensation. I agreed to a contract with them and _get_ compensation (in fact, I effectively get some of the ad banner revenue, costing my listeners nothing but the anguish of having to look at yet another 'Sephora.com' ad ;) )

If you're a musician, if it's your own music, not only are mp3s legal but _you_ are allowed to set the terms. I always encourage sharing and trading of my mp3s. I also write GPLed software FWIW- including some music-related software which I need to start distributing :) I keep asking, "Does anyone want to use this?" but I'm usually asking musicians instead of geeks, and they usually don't get what the software is for (in particular, I've written a nice simple polyrhythm calculator that measures in bars/beats/ticks at 4 beats to the bar and 480 ticks to the beat :) )

Not adequate explanation

[MouseR]

[...]Judge Rakoff explained his ruling on MP3.com. According to him, MP3.com was "simply repackaging" the recordings, adding nothing, and therefore unable to claim fair use.

I dont think this alone is an adequate explanation to the ruling. Else, it would be trivial (and legal) to simply "add" a sine wave to the sound file, under pretext of "adding a checksun for better sound quality and reproduction" and having the player software substract this sine wave while playing.

Important to understand Fair Use doctrine

[dave_aiello]

I think it's great that a story about the details of the judges ruling made the cut as a Slashdot story. I have gotten myself into discussions with lawyers about this issue, and they keep pointing me back to the "Fair Use" Doctrine.

When I started to read about it, I realized how many factors have to be weighed in order to make a legal decision like this one. As much as many of us would like to believe it, the issue cannot be boiled down to "mp3 format good, media companies bad.".

If you are interested, check out the Copyright and Fair Use Web Site at Stanford.

--

Dave Aiello

How does this differ. . .

[Raffy]

. . . from radio broadcasts?

Judge Rakoff was quoted as saying, "this is simply another way of saying that the unauthorized copies are being retransmitted in another medium ... an insufficient basis for any legitimate claim of transformation."

Then I suppose every radio station that plays music that isn't "live in the studio" is breaking the law in the same way.

Rafe

V^^^^V

Re:How does this differ. . .

[briancarnell]

Radio stations pay *royalties* when they rebroadcast copyrighted music. The whole point of MP3.Com is that it claimed it didn't need to pay royalties for rebroadcasting copyrighted music.

Re:How does this differ. . .

[nosferatu-man]

Except of course that radio stations pay per song royalties back to the publishers.

Ta,
(jfb)

Re:How does this differ. . .

[ethereal]

Don't radio stations have to get permission to play those songs though? I'm not too familiar with the the radio industry, but I would imagine that they have some sort of arrangement with the recording industry.

Re:How does this differ. . .

[Raffy]

Thank you for clearing that up for me. I'd completely forgotten that commercial radio ostensibly serves as a "legitimate" distribution channel for music (and I'm not being sarcastic or facetious, surprisingly enough).

I guess that having the same nine songs on rotation for weeks on end cuts down on those costs, huh?

Rafe

V^^^^V

Re:How does this differ. . .

[Tetsujin28]

[How does this differ] from radio broadcasts?

Then I suppose every radio station that plays music that isn't "live in the studio" is breaking the law in the same way.

Radio stations pay money to the copyright owner's representative (usually ASCAP) for permission (license) to broadcast copyright music. my.mp3.com didn't.





"It's that guy!"

Re:How does this differ. . .

[TeaMan]

Broadcasting, means indiscriminate distribution.
What MP3 did was not indiscriminate at all.
What if Yahoo were to notice that they could save a lot of disc space if they could detect when users uploaded duplicate copies of the same data, then made hardlinks to the actual files. Technologically this has been doable for decades. And if Yahoo were to do this, then the only difference between them and MP3 is that they force the consumer to actually upload the data they are going to disgard.
This ruling cannot be but overturned.

Re:How does this differ. . .

[interiot]

Erm, you're not quite right there.

The lawsuit has nothing to do with distribution. MP3.com was licensed with the ASCAP and pays royalties to the artists through ASCAP as needed. Search google for {"mp3.com" ascap} for more on this.

If you look at the wording of the lawsuit, you'll see that the internet is hardly mentioned. And when it is, it's more of an after-the-fact... "MP3.com made illegal copies, that was wrong. Then they went and distributed them. But even if they wouldn't have distributed them, it would have been illegal.".

It's all about the fact the MP3 copied the CD's, and those copies were not determined to be "fair use", therefore, they're illegal copies.
--

Re:How does this differ. . .

[Jon-o]

So, does this mean that mp3.com is, by legal definition, broadcasting? I personally don't think that makes much sense at all... What is the legal definition of broadcasting in the states?

As far as I can tell from a quick skim through Canadian law (which probably doesn't amount to much, given how impenetrable the language is), a broadcast can be just about anything. It could certainly be interpreted to include this, which I very much disagree with.

To me, a broadcast is necessarily something that is broad - i.e. receivable and "viewable" by anyone with the proper equipment. It does NOT include something like this, where you must register with the service to be elligible for it, and then have the information sent DIRECTLY to you.

Re:How does this differ. . .

[Chris Johnson]

That's for the _songs_. The artists do not typically own the _mechanicals_. Mechanicals are the actual recordings of the music, not the concept (lyrics, melody) of the song. Licensing with ASCAP does nothing to give mp3.com access to the mechanicals.

Is it really about anti-piracy?

[Antitorgo]

I find it hard to believe that the RIAA thinks they could stop piracy through this lawsuit. In all actuality, I think my.mp3.com would help deter piracy, in that it is a more "legitimate" channel to get mp3s from. In the past, I have in found it quite useful (such as wanting to buy an album at 2am and then being able to listen to it immediately).

In any case, I think the real issue is that the RIAA is trying to get rid of a potential future competitor. The music industry was caught with it's collective pants down by not offering a service like this before, and the only way to catch up is litigation. If the labels were smart, they'd offer mp3's in leiu of CDs, and make an extra $1/album (since it supposedly costs $1/cd in materials).

Funny thing is that Judge Rakoff claims that by converting to mp3, the work is not "transformed"; but as many people know, a lot of quality is lost in converting to mp3 (especially at 128kb).

Re:Is it really about anti-piracy?

[Sloppy]

I find it hard to believe that the RIAA thinks they could stop piracy through this lawsuit.

They don't, at least not directly. The purpose of this lawsuit was to prevent the concept of Fair Use from expanding in a subtle way.

I guess there's another reason too. It's no coincidence that the MP3 file format and mp3.com happen to have similar names. By getting some dirt on mp3.com, they (psychologically) tarnish MP3s too. And RIAA hates MP3s because some day musicians are going to sell MP3s directly to fans over the internet, thereby ending RIAA's excuse for existing.

If Joe Schmoe hears enough stories about mp3.com and Napster getting sued, then maybe when his favorite band offers MP3s for sale, he'll get confused, and say, "Wait, I thought MP3s were illegal" and pause. He'll go buy a CD from middlemen instead. This is actually already happening: notice that some people posting to this thread are taking this as somehow being a blow to the MP3 file format. When it comes to network effects, interchange formats, etc, perception drives reality.

---

did you read the article?

[ArchieBunker]

They didn't use some lame script kiddie buffer overflow, the problem was with the config files. They could have modofied the apache source and not told anyone.

Re:did you read the article?

[legoboy]

Well, your posting history and the site you link to in your profile certainly fit your alias.

No, I didn't read the article because, as I stated in my first post, I really don't give a fuck. I saw in one of the replies to your post that the Apache folks use their one of their development machines as a webserver. *That* is notable, when the machine is broken into. That the machine is broken into alone matters not one iota to me.

I don't care how the people who broke in did so and I certainly didn't say anything about their procedure. What difference does it make whether they use a buffer overflow or something a little trickier? It's still just another machine that was broken into. I'm quite sure they have backups. It's as simple as restoring them, fixing the vulnerability, and reconnecting the machine. The only thing left to them is determining just how long ago the vulnerability was first taken advantage of.

High profile aside, in what relevent way is it any different than someone who runs one of the myriad Win '9x trojans? Regardless of the Libertarian slant (why argue with what should be common sense?) to everything she writes, this covers a similar situation. Why is one case more special than another? No hypocrite, I.

------

Re:did you read the article?

[VP]

Why is one case more special than another?

Because the crackers explain how they did it, and how to fix the vulnerabilities, which is of interest to anyone who happens to run an apache web server. Of course, those administering apache servers would presumably check the apache section of Slashdot, where the story was posted...

Re:did you read the article?

[legoboy]

Anyone running an apache webserver with an improperly configured Bugzilla setup, you mean.

Would the seven of you nearly two hundred thousand users with accounts who do so please stand up?

------

Re:Reasonable Absolutely

[havardi]

My.mp3.com was LAME waste of scarce internet bandwidth. As if the internet wasn't bogged to hell with warez and porn; do we need people pointlessly downloading music they already have???

To publish or not to publish...

[mdb31]

To me, the real issue here seems to be whether mp3.com is --in a legal sense of the word-- publishing the record companies' intellectual property.

Proponents of their scheme will argue they are not, and that they're simply giving consumers access to their licensed copy of the property, which definitely falls under fair use.

However, the fact that the Internet is involved (a public network if there ever was one) and that the potential for abuse is huge, the record companies argued that MP3's actions constitute publication, something that doesn't fall under fair use in any circumstance.

I can't blame the judge going with the latter argument: MP3.com's system would need much better security before it would be workable. I still like the idea, though...

Digital copies

[Kaa]

An interesting ruling. As far as I could figure it out, the main defence of MP3.com was: this is just space-shifting (which courts accepts as legal under fair use) of the recordings which users own. The judge said: no, digital copies are not the all the same. The crux of the matter seems to be that MP3.com ripped its own copy of the CD [call it copy1] and played it to a user who certified that he owns a copy [copy2] of that particular song. Because copy1 and copy2 are not the same thing, allowing the user to listen to copy1 is copyright infringement.

Note that services like iDrive, to which you can upload all the mp3s you want, are quite safe since there is only one copy of the CD that's being shuffled between hard drives.

Kaa

Re:Digital copies

[yarmond]

While I think your interpretation of the ruling is correct, I don't see how this can be construed as a copyright infringment, when copy1 and copy2 are bit-for-bit identical. Seems a bit silly to me to attempt to differentiate between identical things.

Re:Digital copies

[Kaa]

I don't see how this can be construed as a copyright infringment, when copy1 and copy2 are bit-for-bit identical.

First, they are not necessarily bit-for-bit identical, but that's really irrelevant. copy1 and copy2 are different because they have difference ancestry and are owned by different entities.

To borrow a part of one of my other posts: let's say we both did a full install of some software and both lost the installation disks. Can I delete my own copy? Sure I can. Can I delete yours? No? Why not? Aren't all copies the same?

Kaa

Re:Digital copies

[XScott]

I can't help but think that the legal system is going to continue to be clueless in matters like these.

I wonder if the judge would find a problem if the user uploaded his own copy of the music, and only that user could use his uploaded copy. (Probably not)

Given the previous, would the judge find it illegal to use compression in the uploading process? (Probably not)

If the compression was _really_ good, and an entire 600 megabyte CD could be compressed to just a few bytes, would that be illegal? (Probably not) (Stretch your mind, and imagine a really bitchin new advancement came along and blew away the standard compression algorithms.)



Effectively what MP3.com has done is to have both sides of the communication (the person uploading, and MP3.com as the receiver) agree to a really efficient dictionary style compression scheme. The serial number on the CD is enough to encode all of the information on the CD when both sides have the same dictionary in their compression scheme.



Doesn't really matter though. (I mean besides to MP3.com) The recording and movie industries can try to keep fighting technology at every oportunity, but when you chop off one head another one grows back and is stronger. Shut down Napster and Gnutella pops up to elliminate the weakness of having centralized servers. Do a better job on DVD encryption, and someone will write a video driver to capture the raw bits on their way to the display. Same thing for digital music encryption. Information does truly want to be free, and there isn't anything anyone can do to stop it.

Eventually, a successor to Gnutella will be able to transmit files privately and anonymously too. Not only will no one be able to shut it down, no one will be able to know what you're doing, who you are, or that you're there. The legal battles against Napster, MP3.com and others will become insignificant at that point.

Re:Digital copies

[bifurcator]

To lift a quote from Anarchism Triumphant by Eben Moglen,

Now, in my role as a legal historian concerned with the secular (that is, very long term) development of legal thought, I claim that legal regimes based on sharp but unpredictable distinctions among similar objects are radically unstable.

Re:Digital copies

[G27 Radio]

The judge said: no, digital copies are not the all the same. The crux of the matter seems to be that MP3.com ripped its own copy of the CD [call it copy1] and played it to a user who certified that he owns a copy [copy2] of that particular song. Because copy1 and copy2 are not the same thing, allowing the user to listen to copy1 is copyright infringement.

A couple months ago a friend of mine was staying with me that had a scratched Sublime CD (40oz--one of my favorites.) Using cdparanoia I attempted to create a "repaired" copy for him using my computer, my CD burner, and my recordable media. Is that illegal? Should that be illegal?

However the disc was so badly damaged that I couldn't create a good copy for him. So I made a copy from my legal purchased copy of the CD. Is that illegal? Should that be illegal?

I'm not trying to make a point by asking this. I'm looking for your and others' opinions.

numb

Re:Digital copies

[Tim C]

Using cdparanoia I attempted to create a "repaired" copy for him using my computer, my CD burner, and my recordable media. Is that illegal?

No, I doubt that it is; after all, you are making a "backup" copy for him using his original copy. I don't see that as being any different than saying "Here ya go, here's my hardware, help yourself".
If it is illegal, it damn well shouldn't be :-)

However the disc was so badly damaged that I couldn't create a good copy for him. So I made a copy from my legal purchased copy of the CD. Is that illegal? Should that be illegal?

That may sound reasonable, but I think you'll find that it is illegal under current copyright law. Owning an album entitles you to make backup copies of it; it does not entitle you to copy someone else's copy.

Of course, this is Slashdot, and so IANAL :-)

Cheers,

Tim

Re:Digital copies

[SlashDread]

Interesting.. Q: Can we legally use cashing anyway?

Greetz SlashDread

This is a confusing explanation...

[MasteroftheVoxel]

Recall, according to the RIAA that copying to a digital recording device that does not follow the requirement of the Audio Home Recording Act of 1992 is _illegal_. See http://www.riaa.com/tech/tech_ht.htm
This means that it is not legal to make an mp3 _even if you own the CD_!

Of course, recently in the case against the Diamond Rio, it was found that a computer where _not_ considered a digital recording device because they are primarily used for other purposes, thus they are not subject to the AHR Act.

This is the first inconsistency.

If we then assume that it is legit to make mp3s for personal use, where can we draw the line? Isn't mp3.com simply offering a internet-accessable place to store your "files" which you can record legally since you own the CD. This judge's statement is very confusing. It is still unclear as to whether mp3.com would be violating the law if the users made the mp3s themselves and uploaded them to mp3.com for storage and later playblack. Once that question is answered, we can argue it from there...

Re:How will this affect everyone?

[RangerElf]

It's kind of absurd to qualify a file format as illegal, more like it's current use is illegal. Or rather, can be illegal, or infringing upon someone else's copyrigt (etc etc...)

-elf

Isn't my.mp3 like a radio?

[DeepDarkSky]

I know that mp3.com would like to convince otherwise, but essentially, it's a personalized jukebox version of a radio. It plays music, though now individualized, from a centralized source. I think that their basic premise was flawed, that somehow because a person owned a CD, then the music on that CD should then be available to that person whereever. It's definitely a copyright problem. If they just didn't pretend that it isn't a personalized radio/jukebox, got the artists' permissions, get/use advertising to pay the artists per play, then I don't think they would have had this problem.

Also, since I never used their service, I couldn't find out whether the MP3s that they were sending out were good quality (near CD) or broadcast quality (like radio)? I'd think somewhere in-between might be a good compromise - not allowing the best quality to be freely downloadable and stored. True fans/audiophiles would go and buy the CDs (I know, in order to get the music, you have to have already owned the CD, but in my proposition, they wouldn't have to).

I think that something like what they were providing would have been a very valuable service that even the recording industry would have liked. I just think their approach was wrong.

Re:Isn't my.mp3 like a radio?

[Mojojojo Monkey Inc.]

In response to your second point, you're almost correct... they offer 2 versions of the streaming mp3s. One is a high-bandwidth version for broadband users (reaasonably good quality.. 128 or 160 kbps maybe?) and the other was for Dial-Up modem uesrs (generally 28-64 kbps)

I wish there was something in between those two, because my DSL could just *barely* pull out enough bandwidth to get the high-quality version, but if I tried to do too much on the web or download anything, my quality would turn to shit. And the low-quality version is comparable to real-audio, though it doesn't have the annoying distortions of RA.

And I totally agree with your last point.. my.mp3.com was doing a good thing that a lot of people found convenient, but they apparently didn't consult any lawyers before launching it. The average user would say "hey I'm listening to the same song so there's no difference" but copywright law is very tricky.

Re:How will this affect everyone?

[cmonster]

It is perfectly permissible to buy a CD and record it on tape so you can listen to it in the car.

Is it? I allways thought it was too but in the article the judge implied that there had to be more than just a format change for something to be considered fair use. Thats why I thought the ruleing didn't sound right. If it is fair use to copy a cd to cassete then how is it different to copy it to the internet for your own personal use? And if that is ok why is it wrong for someone else to copy it to the internet and store it for you?

Re:How will this affect everyone?

[Kaa]

Worst case scenario, let's say that courts judge mp3 as being an illegal file format and it must cease to exist.

Err... mp3 is a file format. All it does is describe a convention for attaching meaning to certain zeroes and ones arranged in a sequence. How that could be found illegal I don't know (but the US legal system surprised me before: I am not saying this is flat out impossible).

Kaa

Workaround?

[saridder]

If the judge has ruled that mp3.com copied and re-played the music without the publisher's consent, then perhaps (and this would suck for modem users) if you own the CD, MP3.com would let you rip it onto their server, where you could then listen to the music where ever. Fair use law certainly covers this. So basically MP3.com could be a storage area for your MP3's, and could stream them back to you. Basically the same concept, but you would have to transmit all the 1's and 0's over to their site first, where as now you just have to have the CD scanned without transmitting the data.

some lame points

[ArchieBunker]

1) unless you have a 286 or even an 8088 I think you have a cdrom drive. What computer made in the last 6 years doesn't?

2) there a many freeware and GNU cdda extracting and mp3 encoding programs. ripping a song only takes a few minutes. My cdrom rips at 8x, so 30-45 seconds per song.

3) why would you need upload your cd collection anywhere? If you bought a cd you most likely own a cd player of some sort, and you work computer does not have a cdrom? see number 1.

4) unless you have a 386 or 486 encoding mp3 files takes only a few minutes. And like I stated before theres a ton of free encoders.

Re:some lame points

[Eccles]

1) unless you have a 286 or even an 8088 I think you have a cdrom drive. What computer made in the last 6 years doesn't?

An iOpener, for one.

2) there a many freeware and GNU cdda extracting and mp3 encoding programs. ripping a song only takes a few minutes. My cdrom rips at 8x, so 30-45 seconds per song.

It takes on the order of an hour or so to rip a CD, convert to MP3, label the songs correctly, and plunk it on a CD-R with a few other albums.

I look behind me, and I see ~100 CDs. That's 12 8 hour days worth of ultra-exciting MP3 creation, or something more than $3,000 at my current hourly rate. *That's* not a significant savings? Who are you, Bill Gates?

3) why would you need upload your cd collection anywhere?

Said 100 CDs being worth somewhat more than $1,000, I'd rather not have to have them in my office, carry them around, etc.

Re:some lame points

[My_Favorite_Anonymou]

1. I really havn't brought a cd rom for my libretto yet, really. (my next spear 500 dollars will go to a kenwood audio system, pcmcia cd writer will have to wait.) That's why I don't have office 97 on my pc even though i have the cd.

2 There's no free mp3 encoder for win. My CDex is buddy as hell anyway. I have downloaded the winlinux and brought a 14k "linModem", turn out too lazy to install anyway.

3 The problem of carrying a stack of cd with you is that very inconvenient and I wouldn't risk to lost them. Cheap blank cd made by cheap recorders offen has one or two "cracked" tracks, the trouble of re-recording is enough to turn you off.

-
On the other hand, 24kps stream is almost unbearable. My solution is don't bother to listen to music at school. (No, a cd player is unacceptably big for this libretto owner.)


/_____\
vvvvvvv../|__/|
...I../O,O....|
...I./. .......|
..J|/^.^.^ \..|.._//|
...|^.^.^.^.|W|./oo.|

Judge Rakoff, get a clue.

[C R Johnson]

1. I make a copy of a CD I own onto audio tape for my private use... Fair use.

2. I make an exact duplicate of a CD I own for backup or convienence for my own use... Fair use.

3. I make an MP3 from a CD I own and serve it over my home intranet for the purposes of conviencence and entirly for private use... Fair use.

4. I put that MP3 on my private internet server so that I can listen to it wherever I am... Fair use?

5. I use a public service for the same purpose...only they rip (most of) the CDs (even more convienence) and take reasonable steps to assure that I own them... Not fair use.

I think that as long as reasonable steps are taken to confirm ownership, there should be no problem with this type of service.

Re:Judge Rakoff, get a clue.

[adamwood]

As others have noted, step 5 breaks down...

IANAL, obviosly (saying this feels redundant as even if I am I wouldn't admit it...), but is the following a way round it?

mp3.com are rightly busted for making the copies themselves, but how about if they provided a hosting service for mp3s that accepts uploads from their own ripping agent which has preconfigured settings and requires a real CD to rip.

All this agent has to do is rip and upload and since mp3.com will be using a whizzy file-system/database it just so happpens that they only have to store one copy of each track that gets uploaded.

Now, if the ripping agent is bandwidth friendly it will check before doing the upload whether or not the relevant mp3 is there already and since it is processor friendly it could make that check before ripping, so if someone has done the track before there's no effort on your part.

Add to that a 'user' with a large CD collection and a high bandwidth connection to mp3.com's server and you get what amounts to the current service...

(I'm sure there's a hole in this that is suitable for flying a 777 through, there has to be...)

Re:Judge Rakoff, get a clue.

[FunkyChild]

In that case, I have a feeling that only that one 'user' would be able to access the collection. If for example, I was accessing those same ripped MP3s, the current decision would apply, that an external party was doing the ripping etc. from external party's CDs, so its not 'the same' as my CDs.

I'm assuming that in the my.mp3.com situation only once copy of each MP3 was stored on their servers. What strikes me as interesting though is that in this ruling, from what I've heard, very little mention was made of that. Would multiple people be streaming the same MP3 (file not IP)? If that is the case, then it is more like mp3.com actually distributing their MP3s to people, rather than just users accessing their own copies that are pretty much the same as copied and stored remotely thanks to mp3.com's services? How does the law apply if everyone is streaming off the same MP3?

One thing is for sure though, that these vested interests are really holding back the future of music appreciation. This really is a great service, which protects the artist's IP, which helps drive CD sales, which is convenient for the consumer, and yet it gets shot down like this. I'm quite disgusted.

How is this different from what a CD player does?

[phurley]

"In actuality defendant is replaying for the subscribers converted versions of the recordings it copied, without authorization, from plaintiffs' copyrighted CDs," Rakoff wrote.

Ok I put my cd in my Pioneer CD changer and listen to my legal purchased CD. The player is converting a huge number of bits into an analog signal my speakers can play. Assumably this is an "authorized" player, so no problem, but what determines if a player is "authorized" or not?

If I personally put these into MP3 format and them pipe them through out my house, I'm I in violation of the copyright? What if I place them on a secured server so I can listen to them from my office? If these are still legal how does having mp3.com perform these same services become illegal.

If the argument is that mp3.com did not copy _my_ cd, then the judge is demonstrating a profound misunderstanding of digital information (even if ripping is a little lossy). If the argument is that the act of coping a CD to mp3 format (even for personal use) is illegal, how is this different from making a cassette tape for playing in my car.

Of course do not claim to understand the ways of the lay, but from a common sense point of view, this ruling fails.

My name is not spam, it's patrick

Re:How will this affect everyone?

[psin psycle]

It would be ludicrous to outlaw a file format. That would be like a ruling that no one can make/own .AVIs because you can watch copyrighted movies in that format.

Shhhh!! Don't give the MPAA any ideas!

Re:What is MP3.Com adding? Let's look *harder*...

[Holgate]

You're looking at it from the wrong side: the "repackaging" argument applies to the music itself. Look at what you've said: "MP3.com is making life easier for me." It's a service, and that doesn't affect the music as intellectual property.

Now if MP3.com were ripping these CDs to WAVs, and running them through SoundForge to boost the bass, or to provide vocal-free versions for karaoke, then converting them to MP3s, then that would count as repackaging...

They're adding packaging, not expression

[Sloppy]

I think you may have missed the point. No one is calling it "mere repackaging" and implying that it's useless. But even if mp3.com is providing a very useful service to you, that isn't the same as adding "new aesthetics, new insights and understandings". It's still the same music. The copyrighted expression itself (the music) is the one thing that they haven't changed.

Hmm.. funny idea just occurred to me. What if mp3.com transformed the music by increasing frequencies so that James Hetfield sounds like Alvin of the Chipmunks? Would that be a new .. *cough* .. "aesthetic"? What if the transform was lossless and reversible? Ew, I don't want to think about this...

---

Re:How will this affect everyone?

[kmcardle]

If it is fair use to copy a cd to cassete then how is it different to copy it to the internet for your own personal use? And if that is ok why is it wrong for someone else to copy it to the internet and store it for you?
I can copy the CD as an MP3 to my computer for my own personal use. IIRC, my.mp3.com was allowing you to listen to music that you claimed you owned. At no time did you have to upload the MP3 to a server, you just claimed you had it, and listened to it. I think that's where he's trying to make the distinction.

Copying a CD to cassette is not fair use, it is personal use. Legal splitting hairs time. If I make my Metallica CDs into MP3s and place them on my computer and don't allow anyone but myself to access them, I'm well within my legal rights. If I do the same thing but register with Napster and allow people to download from my PC, I'm violating the copyright. The MP3s are no longer for my personal use, other people are now using them.

--
then it comes to be that the soothing light at the end of your tunnel is just a freight train coming your way

Re:How will this affect everyone?

[mcrandello]

You would be surprised at the straight face the recording industry keeps when they tell you that you . From their page on the Audio home recording act...

The law also provides for the payment of modest royalties to music creators and copyright owners, and mandates the inclusion of the Serial Copying Management Systems in all consumer digital audio recorders to limit multi-generational audio copying.

Since the Computer Hard drives are not considered digital audio recorders, and so the RIAA will try to tell you that you may not use them to make copies of music, fair use or otherwise. (I searched pretty much their entire site for the paragraph where they actually stated this outright, but it seems they may have removed the link or page. Anyone have a link handy?)

I think there could be an easy solution to this. The RIAA would simply need to convince hard drive manufacturers to tack a reasonable fee, based on what audio tapes and blank audio CD's are subject to on all *consumer* hard drives (some differentiation should be made for servers, work machines without audio hardware, etc to be fair). They should do this, hen STFU and go away. Problem solved. Of course this is perhaps too simplistic. Thoughts?

Lay off the crack, man

[anonymous loser]

Perhaps you read a different article than I did. I read the wired story here. In that story, I don't see Judge Rakoff making any such claim. To the contrary, he essentially states that MP3.com was re-distributing the recordings without the record companies' permission. This does not, however, preclude an individual from making their own copy under fair use laws.

I am legally entitled to make a copy of my CD, but I am not entitled to copy CDs I do not own, and give the copies away to those who did legally purchase it. Nor can I buy the CD, repackage it in a different case (or copy it to tape, etc.) and give it to someone, regardless of whether that person has their own legally-aquired original.

In short, you can still copy your CDs to your heart's content, just don't give away the copies.

Re:Lay off the crack, man

[Raul Acevedo]

Ok, so MP3 streams CDs. That is equivalent to "repackage it in a different case (or copy it to tape, etc.)". Then MP3 gives it to someone else. So, they *are* doing exactly what he said, which is wrong.
----------

Re:Lay off the crack, man

[gilroy]

Quoth the poster:

Nor can I buy the CD, repackage it in a different case (or copy it to tape, etc.) and give it to someone, regardless of whether that person has their own legally-aquired original.

Hmm. Unless I give it to them as a gift, or sell it to them for $1. As long as I surrender the CD as well, this is (IMHO) covered by the First Sale Doctrine, which says that content producers cannot control the further distribution of a legal copy. In other words, I can buy a CD, sell it to my friend, who sells it to his friend, etc., ad infinituum, and not pay RIAA a dime.

Now, if I give the disc to my friend, and I create a ripped MP3 disc as well (and give it to my friend), I haven't done anything... I am still under First Sale (IMHO). Or, I could give the disc to my friend, who could then "hire" me to make a ripped copy for him. Yes, I am providing a service, but that service is perfectly in keeping with copyright, Fair Use, and First Sale.

As long as the particular copy resides with one person -- if I do not in fact create the ability for a larger number of people to listen to the disc -- then I think I'm on safe ground. If not, then one could sue Kinko's for providing photocopies -- and sometimes even doing the photocopying -- for my fair use research.

So, it seems (a) mp3.com could store and serve copies I'd made of my own CDs, if I uploaded them; and (b) mp3.com could rip my disc for me, if I sent it to them, since they are just providing a service and my disc would be proof of my ownership. But in the end, are they doing anything different here at all? Sure, I never actually send my disc through the mail. Last time I checked, I could use my credit card online with shipping it through the mail, either.

The key thing is, the end result -- legal listeners and only legal listeners can access digital versions of their music "space shifted" -- seems to be indistinguishable from the two legal and one "illegal" process. Indeed, at no point does this process seem to actually (as opposed to naively) overstep the bounds of Fair Use and First Sale.

I hate to say it, but I think the judge simply bolluxed this one.

Re:How will this affect everyone?

[Sloppy]

Worst case scenario, let's say that courts judge mp3 as being an illegal file format and it must cease to exist.

That isn't going to happen. Nothing about this case has really been related to MP3s themselves. If mp3.com broadcasted WAVs or AIFFs, the outcome would have been the same. No file format is going to get outlawed (not even by DMCA) unless congress passes additional legislation. (Well, ok, some could be supressed by strict patent enforcement, and MP3 is vulnerable there, but that's not quite same as outlawing.) And if those assholes in Washington think we're not watching them now, boy are they in for a surprise.

---

Unfortunately Omission

[Sloppy]

The judge also rejected other arguments, including that MP3's activities could only enhance recording companies' sales since subscribers cannot gain access to particular recordings unless they have already bought or agreed to buy their own CD copies of the recordings.

I wish the article (or the judge?) had spent more bits showing his reasoning on that argument instead of the "space shift" argument.

Perhaps that argument will become more important in the damages phase (e.g. judge finds in favor of RIAA for $1).

---

Re:How is this different from what a CD player doe

[Croaker]

If I personally put these into MP3 format and them pipe them through out my house, I'm I in violation of the copyright? What if I place them on a secured server so I can listen to them from my office? If these are still legal how does having mp3.com perform these same services become illegal.

I think the primary point is that in the case of using MP3's on your private network, it's you who are ripping, storing, and transmitting the music. You have a license to listen to that music. Just checking the CD's I have on my desk, the one outstanding statement is "unauthorized duplication is a violation of applicable laws."

Under fair use, you're allowed to make copies for archival and other (what, exactly escapes me at the moment) "fair use." I think, in general, it's agreed that making copies for your self is "fair use." Giving those copies away isn't fair use.

The key difference between you and MP3 is that you're using your copies of the music for your own use. MP3.com is using their copies to give others access. The judge has decided that this does not fall under the provisions of "fair use" for a copyrighted work.

So, no, you're not in violation. You would be in violation if you made your MP3 server available to your freind, even if you limit his/her access to files that you know he/she owns.

Chuckie explains Judge Rakoff's Ruling

[ch-chuck]

mp3.com defense budget - $ 35,192.63
RIAA prosecution budget - $2,462,898.35

Any questions?

Re:Chuckie explains Judge Rakoff's Ruling

[Metis76]

Anyone know what Napster's budget is for their lawsuit?

Re:Chuckie explains Judge Rakoff's Ruling

[Anonymous Coward]

If you provided a source for these numbers, it would be more credible. For now, we have to assume that you pulled them out of your ass.

*sniff* *sniff* Yes, they've definately been in someone's ass.

Re:Chuckie explains Judge Rakoff's Ruling

[onedave]

There's a more important number to consider in all of this: $369 million. That's the amount of cash and securities that MP3.com had on its books as of March 31. The record companies want some of the money, plain and simple. So they had every incentive to spend millions -- and MP3.com had every incentive not to.

Digital medium comments...

[GeoShine]

Greets folks,

This ruling seems to reinforce an impression I've been getting for the past two weeks. This initially came into mind during the Metallica interview that was posted.

Bottom line: There is still a significant lack of understanding in the industry ... hell, in all industries outside of the technology sector ... as to just what kind of effect the digital medium is going to have on us.

Even if you just look at the overall attitudes that executives in companies outside of the technology sector have ... the only know that they need to have E-commerce and B-to-B solutions. They don't really know why. The influx of companies that are created right now that provide consulting for implementing E-commerce is stunning. They are preying on that ignorance as well. I'm not condoning it, per se ... just making note to point out the parallel to the MP3 situation. Technology seems to go through a curve where it first is misunderstood. If it gains 'geek' acceptance (for lack of a better word), then it will invariably be frowned upon for some time until the higher percentage of the non-geek world is educated as to its uses, and sometime thereafter it will become more generally accepted.

I think I see this is the same path that MP3 and other digital formats will eventually take. Right now, we're still in the mid->late stages of 'Phase II'. More people (including recording industry executives, based on some of the interviews we saw here last week) are still being educated in the ways this can benefit them. The artists on the whole are still pretty clueless on it. Metallica seems to have been 'educated' by some lawyer looking to make a quick name for himself on this one. There are plenty of artists out there who are seeking to embrace the format (knowing that they don't make any money off CD sales anyways). But by and large, the MP3 community is still very much a 'geek' community.

At some point, the executives who are able to embrace the format and see the benefits that this highly intelligent (and very quickly growing) market has for them, they will have no choice but to embrace it, and suddenly, it won't be an issue anymore. Growing pains, folks... nothing more. We shouldn't stop fighting for it, but as far as I'm concerned, the war's end result is already pre-determined... it is just the individual battles that get there that remain to be fought.

MP3.com? Well, they're probably in trouble now. Napster? Hmm, good question... I'd lay no better than 40 percent odds or so that they'll be around in 6 months. But the Internet being used as a medium for song/video/media content distribution? Too late, its already happening. If the RIAA and other agencies like it want to remain players in their respective industries, they have no choice but to eventually embrace it.

Ah well... sorry for the rant. I've been quiet so far, and got bored at work....

- Geo

some of us assemble our own machines, thank you

[jslag]

1) unless you have a 286 or even an 8088 I think you have a cdrom drive. What computer made in the last 6 years doesn't?

How about computers that you build yourself? I put a machine together that didn't get a cd-rom in it for about six months. When 99.9% of your software is downloaded, a cd-rom isn't all that useful.

Alternate defence

[kruhftwerk]

I think that mp3.com took the wrong defence. There are a number of online storage sites which allow you to store, upload and download mp3, which seem to be out of the jurisdiction of the RIAA (XDrive, etc). I see the mp3.com service as indistinguishable, except for the fact that you are not uploading the entire cd. I cannot recall the algorithm that mp3.com uses for media verification, but it seems that it's uploading the identity of the cd but not the data, thereby providing a huge bandwidth savings for the user and mp3.com.

Also, mp3.com bought all of the cd's that they are distributing. They were allowed to make copies for personal use, assuming that the same rules apply for business as they do for people.

So, the major boo boo that mp3.com did was distributing the mp3's without a licence. But so do the online storage sites. The only difference being about 100000000000 bits of data clogging the net during the upload process.

I think this defence hasn't been explored enough. Not many people have mentioned it (that i've seen), so maybe there is a fundimental flaw to my logic? Does this defence fail because the file that's downloaded might not be an exact match that the user would generate using a difference mp3 encoder? If mp3.com distributed rippers and storage space while providing the same database and download capabilities, would they have gotten in the same trouble?

Adding something = Fair Use ?

[redelm]

Is this the real game? Do you need to add something to make it fair use?

Well, that's easy: MP3's take up about one-tenth the storage media and transmission time of the original uncompressed music. It certainly adds _alot_ to the original music by being able to transmit and store it much easier.

I can't comment on the other issues such as is it fair use to make an MP3 of a different copy.

Protest bands against online music

[Brainless]

I don't know about anybody else, but I am going to protest any bands that try to fight the community. There could be improvements to the trading, but not an all out stop. I for one am going to take my collection of Metallica CD's and ship them to the recording agency (scratched to hell so they cannot use them). I like the music, but I will favor my geek-dom over it any day. I would suggest that everybody protests the music. I will never buy a Metallica or Dr. Dre cd again.

-Ryan

Rakoff rhymes with.......

[BoLean]

Rack-on... Rackoff...The Racker Quite a Rak in the balls for MP3.com

The point

[frobbin]

The point of the Judge's argument seems to be that the conversion to MP3 altered the original work. As I understand it, US copyright law says one cannot copy and alter another's work without the permission of the copyright holder. As mp3 conversion is lossy, one can argue that the original work is altered (i.e. quality/content is lost.)

Under this premise one could, however, transfer all 650 MB of CD content in original or non-lossy compressed format and remain perfectly legal.

Personally, I think the Judge is really straining on this point, as all sorts of technologies (fax machines, analog tape decks, VCRs to name a few) alter the quality of the original. It would be a real bummer if you had to get permission from the TV network each time you wanted to tape a program!

I'd like to see this decision appealed, but I'm afraid that's not in the cards...

Why 'Fair Use'? Why not 'Archive'?

[xee]

MP3.COM was acting as a library/archive! Section 108 of the US Copyright Law protects entities acting as a library or archive open to the public. Arguing fair use is stupid! They're not even subject to fair use requirements because they are not the end recipient of the works. Furthermore, if someone downloads from MP3.COM and illegally distributes the songs, MP3.COM is NOT LIABLE (sect. 108-f-2). They are so far within their rights, it's not even funny.

I'm a freakin junior in a crappy high school (never taken a law class) and I can make a better defence than their big shot lawyers!!!

Please go and read Section 108. Judge for yourself with the real facts.


-------

Re:Why 'Fair Use'? Why not 'Archive'?

[havardi]

Umm. It is not open to the public; you need an account and can only access what you own.

Re:Why 'Fair Use'? Why not 'Archive'?

[xee]

Anyone can become a member! You don't need to be an employee, researcher, et cetera. I, Joe Q. Public can go out, buy the CD, and become a member. That's public access.

The public library is public access, but you need a card to check out books (membership). Anyone can get a card!!!


-------

My.warez.com

[havardi]

Could a company setup an "application storage facility"? Slap in your Office CD and punch in your serial # and you can access YOUR legally owned software from anywhere in the world. Of course you have to own the machine as well, but that's a given, right? ;-) Obviously this wouldn't fly due to copy protection-- you could save it to another machine that isn't your, or share your login with your friends/world. Same risks involved with my.mp3.com. I'm surprised no one trades my.mp3.com accounts.... besides the fact that it's lame, and there is Napter :P

Re:My.warez.com

[cantherius]

Well, actually - if you knew the whole story you wouldnt be surprised: 2 people can't be logged onto the same account at the same time. I learned that one day when a friend logged onto my account while I was listening. It then plays a stream that says "we're sorry, but you tried ot access a file that is unavailable.." blah blah. Therefore, it makes it real hard. The only real pirating that could be done would be if someone borrowed a friend's cd and beamed it. But of course... noone would EVER do that :)

Re:Interpretations of IP ???

[Lumpy]

What??
Let's see.... Hi I'm dave, I go and illegally copy these songs, now I'll charge you to listen to that music. It's fair use if YOU rip the song and YOU use it for YOUR use.. having your friend chuck rip it for you is ILLEGAL. you have to get off your lasy butt and rip it yourself. you can make 65,000,000 copies of all your metallica cd's and they cant to anything to you... if you use them and you are the only user of the copies. (no you cant play them for other people, that requires you to pay royalties... you have to play them locked up in a sound proof booth that is covered by a sound-proof towel.

I really hope that a lot of bands tell the record companies to bite themselves... but it wont happen... EVERY band out there are pimped whores for the record companies. and if you're not with a label then you play for back street bars and get maybe 60 bucks a night.

Cacheing takes a hit

[Effugas]

The core essence of adding something new is when a previously impossible activity becomes feasable.

It was previously impossible to listen to the music you purchased wherever you could find a net connection.

It should arguably remain impossible to listen to the music you never purchased--by your casual ad listening, by sponsorship, or by buying the CD. And that's what MP3.Com implemented.

To be honest, MP3.Com really did nothing more than cache the songs its users proved they owned. Instead of storing 100,000 copies of Britney Spears's latest single, they stored one. Instead of requiring people to send 100,000 copies of that single, which would be the literal definition of a space shift, they only sent the minimum cryptographically equivalent data necessary to prove the ownership was valid. But the end result was the MP3.Com was able to add value to a customer's existing property in a way that was efficient on networks yet far more secure than anything the music industry has made themselves.

Essentially, MP3.Com has been an extraordinarily cooperative corporate citizen to the music industry, and probably never would have gotten in trouble with this in the first place if they had paid some dues to RIAA, ASCAP, and BMI, all of which might fear losing influence of one form or another.

We don't have bribes here. We've got charter members.

Yours Truly,

Dan Kaminsky
DoxPara Research
http://www.doxpara.com

ugh...

[kennedy]

Ok here is my input on this topic: Somewhere along the lines i was told that mp3 were not so legal because they were in a digital format, therefor there is no loss in quality and that is why everyone is up in arms over this whole ordeal. But if making digital copies is illegal, than is it still legal for me to use a dat and a a dat walkman to listen to music i've recorded from my own cds? what about the ill-fated DCC format (anyone else remeber it?)? DCC stood for Digital Compact Cassette and it played these new dcc tapes as well as the old analog tapes. Why wasn't this marked as being possibly illegal?

Music piracy aside i think this whole deal with mp3s being illegal a load of bullshit. I own my cds, and i can legally make a personal copy for ym own enjoyment. i don't care if it's mp3, cassette, cd-r, or lp. i have no intention to distribute my own collection of music or help in music piracy (i am a musician with an album on it's way out) but i do NOT think it's fair to be told how or how not to listen to the music i have purchased.

Re:Reasonable Absolutely

[Nafai7]

With my.mp3.com, I could access my whole music collection from anyplace with an internet connection. I personally thought it was awesome. At work I could call up anything from my collection I wanted. Also, I did not have to worry about carrying the (very costly) CDs around.

as an added bonus, I was able to listen to music off of some of my CDs that were scratched beyond repair by listening to it off of mp3.com.

Also, internet bandwidth is increasing very rapidly. There will be plenty of bandwidth to go around.

all in all, my.mp3.com was a cool and useful service. Judge Rakoff's decision basically hands a little more music distribution monopoly power over to the RIAA. How sad.

Can you download copies of music you already own?

[_UnderTow_]

What is the legality of downloading a copy of an album that you have on cassette (or even 8 track)? is this considered fair use or space shifting?. For example, my son destroyed my copy of an album, is it then legal for me to go onto Napster and find copies of all those songs and burn them onto a new audio CD?

But it goes both ways...

[VAXman]

You say everybody outside of the technology industry does not understand what digital media will do for them, but I find that most of the people inside the technology industry needed to be beaten with a serious cluestick concering the issue also. Regularly on forums like this there are comments such as "information wants to be free" mostly from teenagers who have absolutely no conception about what goes on in order to produce the media, how much work it takes, how many people contribute, and how much it costs. You have Jon Katz spouting off about how anything which can be encoded digitally should be free, while he reaps the profits from the book he published two months ago, which is not published digitally. Most technology people have _very_ little understanding of the consiequences of the technologies. It is our job to figure out how to make machines which can calculate and move data, but to suggest that you understand how these should be used and what the laws should be is just absolutely assinine. I'll trust content producers choose for themselves how they distribute their work, and if they choose digital, or paper, or acetate, it's fine with me. The last thing we need is a bunch of teeny-boppers on slashdot whining how about how much smarter they are than all of the Big Evil Corporations (tm).

Re:But it goes both ways...

[GeoShine]

Heya,

Regularly on forums like this there are comments such as "information wants to be free" mostly from teenagers who have absolutely no conception about what goes on in order to produce the media, how much work it takes, how many people contribute, and how much it costs

Agreed. When I say 'in this industry, I'm pretty much referring to people who are gainfully employed in the sector. I don't mean the teenagers you're referring to. I isn't my intent to get into the 'information wants to be free' discussion.

Katz? Heh. No comment.

I'll trust content producers choose for themselves how they distribute their work, and if they choose digital, or paper, or acetate, it's fine with me.

Again, agreed. My only commentary is that 'content producers' we're taking about (largely musicians) do not, in principle, have a choice about how to distribute their music. They either choose the megalithic corporations which rape their profits to support their (as earlier posted) $2 million dollar legal budgets, or they aren't successful.

I can probably name about a dozen bands, in total that have made it successfully on their own without broadband (to misuse a term) support.

- Geo

It was a stupid defense on their part

[Snaller]

Claiming fair-use on their part? Are they stupid or what

The description of the service in question is The my.mp3.com service features software that lets computer users with an original copy of one of the recordings in the database to register that CD. It then allows the user to listen to that album over the Internet from any computer, without having to insert the original disc
Assuming they could live up to that, why is that bad? What MP3 should have claimed, was that this is a new kind of radio.
In radio a song is replayed for millions that may or may not have bought the song, here it's performed for one person who has.

One point of contention was that they have copied without permission, to me this raises the question of radio again - it is possible that every single radio station in the US always broadcasts LIVE - but they sure as hell don't do that around the world, many many shows are taped in advanced - would this judge also consider THAT to be a copyright violation? A DJ tapes a program and everything single song within has been copyright violated (well an american one might) But presumably noone would be that stupid - same thing here, it is a .. temporary broadcast related media transfer - wake up and smell the future dear judge


--

Re:It was a stupid defense on their part

[aclute]

You're forgetting one smaller part: radio stations have permission to do such things. The record companies have given the stations rights to rebroadcase the song, etc in exchange for airplay, promotion of the song and the record.

Subjective morality (Was: MP3.COM ruling is good)

[ekidder]

Or perhaps it is your morality that is wrong? :)
I'm not saying that it is, of course, since morality is a very subjective thing. But to dismiss a person's beliefs offhand like is rather rude. I also agree that what MP3 did was illegal, but I can see the point of view which argues that they did nothing wrong.
Most (and I say this from observation) people who post to Slashdot are in agreement that information should be 'free' (ironically, most people are also privacy advocates) and that intellectual property has no place in the multiverse. But you know, that's the just one way of looking at things and it's neither wrong nor right. It just is. Same with believing that MP3.com was doing something 'bad' because they were infringing on others' intellectual property.
Now that I've said absolutely nothing of content to support my idea that morality is subjective, I go now.

Eric ze Kidder

Re:Reasonable Absolutely

[havardi]

>>Also, internet bandwidth is increasing very rapidly. There will be plenty of bandwidth to go around.
If you haven't noticed; regardless of how much bandwidth we have or will have-- people will find ways to soak it up.
someday we will have your dvd collection available on the fly anywhere in the world. how convienient!

Slashdot interview!

[Golias]

It seems to me like it would be a great idea to have this judge interviewed on /.

From the comments, it is obvious that the press reports explained his ruling to the satisfaction of nobody. Judge Rakoff's responses to our questions might even shed some light on whether there is room for an appeal... or perhaps what could be done differently in order to set up something like my.mp3.com that is less open to litigation.

Transforming Content?

[The Cat]

Hmmm. So according to this ruling, if I "sufficiently transform" copyrighted material, it becomes permissible under fair use? I didn't see that in the fair use provisions.

Does anyone know the basis for this ruling? Is there case law on this somewhere? I would think that use of copyrighted material, unless it met most of the fair use provisions, would still require some kind of permission.

Re:Transforming Content?

[retiarius]

campbell v. acuff-rose (supreme court case)
is on-point for at least one type of
of transformative content -- parody.

see citation and infotainment (apple
commercial satire) at:

http://home.earthlink.net/~retiarius

perhaps running the .mp3 songtitles through
'jive' would help robertson & crew out a bit!

Re:Transforming Content?

[muldrake]

Hmmm. So according to this ruling, if I "sufficiently transform" copyrighted material, it becomes permissible under fair use? I didn't see that in the fair use provisions. From : Under the first of the four 107 factors, "the purpose and Page II character of the use, including whether such use is of a commercial nature . . .," the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message.

Re:How is this different from what a CD player doe

[phurley]

"So, no, you're not in violation. You would be in violation if you made your MP3 server available to your freind, even if you limit his/her access to files that you know he/she owns."

So here comes the rub :-) What if my friend did not have a cable modem and ripped her own cd's and put them on my server (and it was secured such that I could not access them), were do we stand? Now take it a step further, lets say my friend had trouble ripping his cd's and I helped her?

Last step, while ripping her copy of Aqua Barbie Girl the ripper kept crapping out because the disk was scratched and I (ashamedly) took out my copy and let helped her rip it. Is it this last step that makes it illegal? Because I would think fair use would include "repairing" a damaged copy etc. To think that there is some magic between otherwise identicle copies of some digital resource is to throw reason out and replace it with law.

My name is not spam, it's patrick

Re:First post ( off topic )

[nard]

I think that it _must_ have been brought up before but cant be bothered trawling through 1000's of posts and I am quite new to /. The site is great, however the only thing ( in my opinion )that bring it down is many of the posts by anonymous cowards. I respect the online privacy but don't you think that it is being slightly abused? If I post something stupid and it ends up in a flame war then at least you know who you are insulting. Come on guys own up to your actions.

Fair use and "repackaging".

[seebs]

Everyone seems hung up on the "more convenient" format. Would you argue that printing a smaller-print copy of a book is "fair use"? Of course not.

No *creative content* was added. I agree with the judge on that one.

Also, people are missing another crucial point:

That the judge made a decision based on a given factor does *not* mean that, if he's wrong on that factor, the decision is wrong. He might have ended up making the same ruling based on other factors, and in a case like this, probably would have.

The absence of a sufficient condition for one conclusion is not a sufficient condition for another conclusion.

They Might Be Giants is metal? WTF???

[cthulhubob]

I am a big fan of many types of music. I have many metal CDs (only two Metallica, and I'm not going to get any more Metallica now), and I also have four They Might Be Giants CDs.

Believe me when I say that I don't put the two close together for fear of them disappearing (kind of like matter and anti-matter). :)

TMBG is a great band, but any review that said they were a great example of what Metal should be would definitely cause me to rethink visiting that web site.

Re:They Might Be Giants is metal? WTF???

[ColonelNorth]

The line involved was a joke. :) I really hope any sensible person would ever create such a line. The point was the fun humor involved in random generation of reviews. I also really hope no one would word a review of They Might Be Giants, the song off of Flood in such a manor with the band name. It would confuse the hell out of me. As for Metal, it was a random throw word. I have given up trying to classify John and John... :)

Re:Subjective morality (Was: MP3.COM ruling is goo

[Wah]

yes it was rude. I feel rude today, especially after one of my lusers really belived that somebody out there "LOVED THEM", dammit.

I think that vius was written my the RIAA to kill mp3's, an MP3 KIllBOT, working on a story about it for the Free Media.....

--

Re:Umm their main premise(as you said) is right?

[Quincy[WRC]]

The hole in your argument is the "should." I agree with you that you "should" be able to. Fact of the matter is that you aren't listening to "your" music though.

1)my.mp3.com making a copy of a cd they purchased and then letting you listen to it is not the same as you making a copy of a cd you purchased and listening to it.

2)No proof of ownership was ever required. Proof of posession of the CD was required. This does not distinguish between your cd and your buddy Joe's. Joe could lend you his cd for the purpose of registering with mp3.com, and then you can get at music you have no right to.

3)You can make as many copies of your music as you want for your own personal use, but, here's the kicker, legally you can't use more then one of them at once.

4)The mp3 you rip and the one mp3.com rips from 2 seperate cd's will not be the same bit for bit even if the original cd's were "exact duplicates" of each other. The digital audio stream goes through the D/A converter on your sound card or CD-RM before anyhting unless you have a digital out on your CD-ROM. Also, different programs will encode slightly differently.

5)IANAL, but I am one in training. While you may not like the restrictions the law places on you, it is still the law. It may not be pretty, but it is the easiest way to protect the rights of the musicians. Note I did not say Pocketbooks.

Apache story *WAS* posted

[Col. Klink (retired)]

The Apache story was posted in the Apache section yesterday...

http://slashdot.org/article.pl?sid=00/05/04/1217 225&mode=thread

Interformat copying as fair use...citation?

[Robotech_Master]

I'm just curious here...

Can anyone provide the exact legal citation for the case decision or law that states that personal copies to different formats are covered by fair use?

I've sort of started taking this for granted, as have some others, but in an argument/discussion with some folks on the SFFnet newsgroup, it occurred to me that I'm not sure what basis there is for this supposition, or the exact nature of the decision. I'd like to know this, both for my personal knowledge and as ammunition in my argument. :)

Can anyone help me out?
--

Re:How will this affect everyone?

[Oarboat_7]

Thoughts?

Well, for one, I am not interested in paying more for my hard drive so you can store music you didn't create yourself on yours thankyouverymuch.

In fact, if I got out my Roland SH-101 (a monophonic analog synthesizer) or my clarinet and a microphone and used my "digital recording studio" software (i.e. Cool Edit Pro, Cakewalk, Ceres SoundStudio, etc.) to record my OWN music, I would NOT be happy to be paying royalties that ultimately end up in the bank account of "Nerd Turdwad and the Slashdots" (let alone the part skimmed off by the RIAA, or the copyright-mafia of your choice.)

I can't think many folk musicians would be enthusiastic about that either.

Re:How will this affect everyone?

[StaticEngine]

I think there could be an easy solution to this. The RIAA would simply need to convince hard drive manufacturers to tack a reasonable fee, based on what audio tapes and blank audio CD's are subject to on all *consumer* hard drives (some differentiation should be made for servers, work machines without audio hardware, etc to be fair).

God, this is so completely idiotic. Should I have to pay a tax to Italy on every strainer I buy because it might be used to make pasta? This is such a pathetic money grabbing joke, all of it, that it really sickens me to be a musician sometimes. Music is data, and in the end, it comes out to be pressure waves in air, no matter how you slice it. Why is there such a differentiation as to how the representation of those pressure waves are stored? A toaster that works with filiments burns bread as well as one that has ceramic elements. Storing music on a computer with MP3 format is functionally the same as burning a CD with a dedicated Audio CD burner...

And of course, the final issue is, in all this wicked grabbing for money by the RIAA, how much are artists really seeing? Has any musical group that made under $50k last year really seen a single dime of this money "rescued" from pirates? Why are we letting lawyers run this show, when the artists should be making these decisions?

-pjf

Re: It can be illegal

[floop]

To grow peas that were store bought for consumption If some entity like Monsanto were to own the patent on the pea. You wouldn't have license for reproduction just because you "bought" the peas. You pay for cable but you're not allow to rebroadcast or reproduce most of what you see. Professional sports games always have the "No reproduction of ANY kind" all over the broadcasts. This is nothing new. Money will always win. The idea is to make the battle moot.

Re:Umm their main premise(as you said) is right?

[Tackhead]

> No proof of ownership was ever required. Proof of posession of the CD was required.

Incidentally, if RIAA had used this argument against my.mp3.com, I think they'd have had a much stronger case, and I'd have had no problem with a ruling against mp3.com on such grounds.

What's interesting is that uploading "the mp3 you rip" to something like myplay.com or idrive.com, doesn't even prove that you ever had the CD in your posession. But these services aren't getting sued, while mp3.com did.

Yet more evidence that RIAA is far more interested in eliminating people who've pissed it off than in protecting the intellectual property of its artists.

Descisions of ignorance

[mikefloyd]

It really seems that most of the people who are involved with the legality of MP3 music, such as in the MP3.com and the Naspter issues, really have no idea how the technologies work, or the signifigant legal benifits these offer. They seem to only look for the piracy issues in new forms of technolegy, and then deem that this is the only reason these technologies exist. It is a sad state of affairs when the future of high tech companies is descided by techno-illiterate people.

This Ruling Against Precedent

[Randym]

1st: IANAL.

IIRC, there was a case many years ago involving two phone companies. Company 1 invested a great deal of time in putting together a list of phone subscribers. Company 2 "borrowed" the same list and made it available under their imprint. Company 1 sued them for copyright violation. Who won?

Company 2!! It was ruled fair use. They did not add any value to the list, merely reprinting it.

The name of the case escapes me at the moment; however, it was a precedent-setting case and any capable lawyer out there could probably come up with it in a few minutes.

I think the judge's ruling will be overturned on appeal because of the case that I have cited above.

Re:This Ruling Against Precedent

[ecampbel]

There is a huge difference between a database of phone numbers and a piece of music. A database of public information doesn't have the same protections as a copyrighted work.

Also, I don't think you are giving all the facts of the case because there have been cases where a company has gotten in trouble for wholesale copying of a competitor's database. If you want more information, there have been several articles on Slashdot about this issue.

The bottom line is that a courts ruling's on a database protection case will not have any bearing on mp3.com's case.

Re:This Ruling Against Precedent

[mindstrm]

This is more like the controvercial database-copyright laws. The work itself is not original, but as a collection.. it kind of is. This is a different issue.
You do not own the copyright on your name and address, and your name and address are not 'original works' of the phone company, but the compilation itself is.

Re:This Ruling Against Precedent

[muldrake]

This is the case. FEIST PUBLICATIONS, INC. v. RURAL TEL. SERVICE CO., 499 U.S. 340 (1991)

However, I don't see how it's relevant to the MP3 case. Mere lists are uncopyrightable, as are facts or ideas themselves. It is the expression of ideas that is copyrightable.

By this logic, the white pages are not copyrightable, but a set of yellow pages which separates businesses into categories is.

Court records, for example, are not copyrighted (although it may be copyright infringement to copy copyrighted materials which happen to appear in court records). However, the citation scheme and page numbering used by West *is* copyrighted.

In either case, I don't see how it applies to the copying of music files by mp3.com, which are not lists but musical works.

Incidentally, how do I stop my posts from all spilling out in one line without typing a bunch of goddamn paragraph tags?

One copy or many copies, what's the difference?

[nedwidek]

Okay, the courts have said that someone can buy a CD and make a copy for personal use. So in the real world what we have is many individuals making many copies (hopefully 1 to 1 ratio, but we all know better).

Now mp3.com makes a copy of legally purchased music and allows access to people who have also legally purchased the same music (This is not broadcasting! Broadcasting would be allowing access to anyone. Narrowcasting?). Abstractly this would be the same case as many people listening to many copies. Why does it really matter if its many licensed users listening to their own copy or many licensed users listening to the same copy.

I guess this judge isn't much of a pragmatist and thinks there is a difference. Then again this could just be a case of cranial-rectal inversion.

Re:How is this different from what a CD player doe

[aclute]

You're fine up to the last step. Giving her a copy of a mp3 ripped from your licensed version is not allowed. If you gave her the CD and the license for it, she would be fine.

I think repairing doesn't fall under "fair use", but I am not sure. Either way, as the law says, you can only have fair use on the private use of copies that are made from media that you have a license for.

um...

[Gutzalpus]

Has anyone else noticed that the my.mp3.com archive is back up? When I tried to get in last week it had been taken down, but I tried it just now and it seems to have been restored...

another explanation of Judge Rakoff's Ruling

[WillAffleck]

- mp3.com defense budget - $ 35,192.63
- RIAA prosecution budget - $2,462,898.35
- Doing the right thing - priceless

Big problem with this ruling

[TWR]

If it's not OK to use someone else's copy of IP, then does the judge think that borrowing a video tape from someone else is illegal?

Methinks this is far from over...

-jon

Re:Big problem with this ruling

[Mike A.]

An interesting (and IMHO closer) analogy is that the judge is saying that it's illegal for you to dub a copy of your videotape of a movie, and give it to someone who already owns his own copy of the videotape.

The freaky thing is that this may actually be the case, under copyright law. Even though it certainly doesn't violate the spirit of copyright law, it's conceivable that it violates the letter. Bleah.

--

Is it Live or is it Memorex?

[WillAffleck]

The problem is that, at least prior to the ruling, mp3.com wasn't actually making a "backup copy".

They could have made a real copy of the MP3 of the track, stored it on their network, and only allowed you to play it. Instead, they read the track info, uploaded only tracks that they didn't have in their database, but used a master CD to make a "shared" copy which they served out to all the users. That's where they became vulnerable. They literally allowed thousands of users to listen to a copyrighted CD that mp3.com had purchased, not the original one that the user had purchased.

It's a fine point, but it means billions of dollars.

Why does it really matter if its many licensed users listening to their own copy or many licensed users listening to the same copy.

Because the law, as it exists makes the former ok, but the latter illegal. On an esthetic level, I agree with you, but you need to change the law, not get angry at the judge for enforcing the law.

IANAL, of course.

Making a copy of my cd is illegal?

[jocknerd]

"In actuality defendant is replaying for the subscribers converted versions of the recordings it copied, without authorization, from plaintiffs' copyrighted CDs," Rakoff wrote.

This means that without the permission of the RIAA, I can't make a copy of my cd to my computer at all. This is total bullshit!

Re:How will this affect everyone?

[Jon-o]

The interesting thing about mp3s are that the format IS patented. Many, if not most mp3s ARE illegal, because the owner of that patent doesn't allow other code to be based on its algorithms. I think.

I know gogo is not stored on US servers (or as part of debian) for that reason. Same with any other mp3 encoders.

Kinda makes you think, that this wonderful FREE format called mp3 isn't so free as we all make it out to be... what's to stop them from pulling a unisys and start charging fees for every use of mp3s? Nothing, AFAIK...

For Sale:

[snubber1]

For sale, one collection of 80,000 music CDs featuring every band in existence. Only used once. $960,000/OBO

----------------------------------------------

Rakoff contradicts himself?

[zipwow]

These two statements seem at least a little contradictory:

Rakoff disagreed with MP3.com's argument that its music service is the "functional equivalent" of storing CDs that had already been purchased.

He said the company [...] "simply repackages" the recordings so they can be transmitted through another medium.

The part removed is the statement about not adding any creative content, which is true enough.

So, do they 'repackage' it and send it to people who already own it (who can own copies of it) or don't they?

Furthermore, he seems to miss part of the point in this statement:

In actuality defendant is replaying for the subscribers converted versions of the recordings it copied, without authorization, from plaintiffs' copyrighted CDs,

I wish he (or the article) would have addressed the fact that the 'subscribers' in question here already OWN the recordings that are being replayed to them.

Zipwow

Hmm, what are the implications of this??

[Anonymous Coward]

I have read somewhere on the net that usenet posts are copyrighted material unless the author specifically states that it is in the public domain. Yes, even though someone posts the info to a public system, it is still copyrighted, and permission is required to copy the post or make a profit off of it (especially if the posting is useful to someone, and not pointless drivel.)

Does this ruling against mp3 imply that the public on the net can all sue deja.com for creating a database of our repackaged, copyrighted postings, and then profitting off of the banner ads shown when people search through and read posts on their commercial system?.

Think about it, a lot of authors probably assume that their postings are temporary and fall off of the system after days or weeks. A lot of Usenet posters may not even know about the deja.com archive. No author has given deja.com permission to archive, copy, reproduce, or profit from the post. What deja is doing seems to be quite similar to what mp3.com is doing. Hmm, a zillion posts at $1 each would be a zillion dollars for all of us to share. Hmm, that would be great for our wallets, except for one thing, out of greed we would put deja.com out of business, and no longer have use of such a convenient, useful free tool.

Re:Can you download copies of music you already ow

[cantherius]

What I wonder here is, what is the difference?? Think of it morally - you bought it, so you have that right. The RIAA won't know, and noone will think lesser of you for it. :)

Let's try an analogy.

[reve]

Right. That's perfectly consistant with the law and this ruling. Fair use breaks down at step five, because someone else does the dirty work. MP3 -- as has been noted here many times -- is just a format. Say you own a VHS copy of Citizen Kane. You love it. It's your favorite movie. It's the only reason you still have a VCR, having moved mostly to DVD. If you had the DVDR and a video capture device, you could make your own (admittedly low quality) DVD, and dump that VCR. No problem.

But what if *I*, seeing an unbridled market niche to exploit, decide to start making DVDs of classic movies that havn't been released to DVD yet? No extra DVD features or anything, just a spiffy package and a VHS-quality recording on DVD. To make sure no one gets ripped off, I make you trade in your (original) VHS copy of said movie.

The problem isn't in your right to own a DVD of your VHS tape, it's in ME doing the job. The owners of the IP have the right to reissue their goods in new mediums to keep sucking cash out of consumers. That doesn't impede fair use. It's unfair use in my case, because I'm undercutting the market that they have been granted a monopoly on by copyright law.

Can you dig it?

What it MIGHT affect is the companies doing "put your old records on a CD" type audio restoration work -- that's what I'd be interested in seeing.

Curious

[Pope Slackman]

>Either that, or hope the record companies are generous enough to loosen the rules of "what you can do with that $13 CD".

I'm wondering where you found a $13 CD from a major record label... ;)

--Kevin

=-=-=

Re:Curious

[Zarniwoop]

I dunno, doesn't Fat Wreck Chords or Tooth and Nail count? Aren't they major labels?!??

Ok, I guess not.

What do I do, when it seems I relate to Judas more than You?

Re:How will this affect everyone?

[mcrandello]

"Well, for one, I am not interested in paying more for my hard drive so you can store music you didn't create yourself on yours thankyouverymuch."

I'm not exactly thrilled at the prospect either, mind you. I'm just throwing out some ideas here. As a musician myself, should I be thrilled that the RIAA wants to attack computer users who want to make backups of music that they purchased (note, I'm assuming your not talking about privacy here, because I'm not). The fact that they don't want us storing music on our PC's means that noone will win if they have their way. I beleive they would as soon illigitimize the mp3 format itself, which would cut out an effective way you have to share music that you've created.

Perhaps the idea isn't that great, however if I understand things correctly you're already paying this royalty if you use analog tapes, dats, or audio CD's to store your music on. And I have a feeling that they won't leave computer users alone until something like what I said above happens anyway :(

Let's face it, noone wants to pay more for what they feel is theirs, however the music and movie cartel want us to keep paying over and over again. I wish there were some happy medium.

I agree, very lame points.

[TwistedGreen]

Those points are irrelevant.

Listen Up RIAA

[Malefious]

If anyone from the RIAA is reading this, take note:

I am a lawful person. I do not make copies of my music so other people can get for free what musicians sell. But when I buy a cd, mp3, or whatever, it becomes mine. I will listen to it when I want, where I want, and in what format I want. Because when I buy the music, I own the rights to listen to that music. I believe a majority of the people in this world are like this too. Any attempt to stop me from being able to listen to my purchased music in whatever form I choose, I will defeat. It is not my problem if others can copy it. I will not give up my rights because some people break laws. I will not allow you to take away my rights, and we will do what we have to to make sure you're not abusing us to put more money in your pocket. Come up with a way for me to listen to what I buy whenever, whereever, and in whatever format I want, then this issue will be moot. Thank you.

Do the Evolution

Because..

[mindstrm]

The problem, and it might seem like nit-picking, but in a way, it's very legitimate, is this:

Yes, you have the right to your backup copy.
Yes, mp3.com has the right to their backup copy.

NEITHER of these rights, however, has anything to do with your right to profit from sharing these copies with others (whether by copying, streaming, etc...). It is a completely separate issue.

From an overall point of view, mp3.com is making money (hits==money), and increasing it's business, by distributing copies of music that they DO NOT HAVE LICENSE TO DISTRIBUTE. The fact that you already own the CD is completely irrelevant. The fact that they check to see if you own it is also completely irrelevant. They THEMSELVES made the copies of the music, and THEY THEMSELVES are distributing it to people, without license.
Read: They are profiting by distributing copyrighted works without permission of the copyright holder.

Now.. if they had a service where *you* compressed your own music, uploaded it, and then they made use of an elaborate caching mechanism in order to not duplicate data, they might have a case... *might*

Hunh?

[mindstrm]

where did you get that?
The DHRA specifically says that you can not be prosecuted for making copies of *any* music to *any* media so long as it is for noncommercial, personal use.

Also, the serial-copy protection mechanism (part of dhra?) EXPLICITILY exempts computer's and their peripherals from the act.

It's bad because..

[mindstrm]

Although ethically, it seems right.. it's bad for this reason:

mp3.com does not have distribution rights. Just because you have the CD does not give them these rights. They are profiting by reproducing the artist's copyrighted works. Period. All other facts are irrelevant. They are profiting by distributing works they do not have the right to distribute. Period.

Radio stations

[mindstrm]

Radio stations pay royalties every time they play music on the air. In exchange for this, they are granted certain leeway.

The *copies* mp3.com made may be legal. They would be legal if mp3.com didn't use them for illegal acts.

mp3.com does not have the right to distribute the music. Period. Copy it all they want.. they can't *PROFIT* from that copying.

Would the judge consider a radio station pre-taping the show a violation? No.. because the radio station already has the legal right to do what they do. There are already agreements in place with the music industry.
mp3.com has *no* agreements with the industry.

From RIAA's website....

[Wntrmute]

> If you choose to take your own CDs and make
> copies for yourself on your computer or
> portable music player, that's great. It's your
> music and we want you to enjoy it at home, at
> work, in the car and on the jogging trail.

Read it yourself if you want.

Apparently, it is bad if you want to have someone else give you that copy of music that you paid for. RIAA shows their hypocracy.
-Wintermute

Shouldn't his name be "Rudge Jackoff"?

[prop-hed]

'nuff said.

Instant listening...

[Firinne]

One of the coolest things about my.mp3.com was that you could buy a CD from one of their online CD sales partners, and listen to the album right away in mp3 format, while you waited for it to be shipped to you. Pretty damn cool. I would have considered that to be "value added" to the consumer.

Does anyone know how MP3.com would have had to change the music or add value to the consumer in order to make it under fair use?

/. should interview Michael Robertson and find out what the hell they plan to do now.

Re:How will this affect everyone?

[tragedy]

Tetsujin28 wrote:

There are clearly many legitimate uses for the mp3 file format, so it can't simply be declared illegal because it can be used to violate copyright.

On the other hand, a tax is already collected and paid to the RIAA (is that enough A's?) for certain types of recording media under the assumption that they will be used for piracy. So, although mp3's probably can't be declared illegal (and I agree that it's ridiculous to single out any single file format), there is precedent for pro-active fines on the media that may carry them. So, it may not be all that far fetched that part of the cost of hard drives, floppies, cd-r's, etc. will be a direct payment to the RIAA (again, is it "...Artists Association of America", or just "...AA"?), MPAA (same problem), etc.

This may be far-fetched, but lots of laws that I once would have considered beyond the pale of sanity seem to have been passed. I am most certainly not a lawyer, nor do I have any training in ethics (do lawyers have to take any courses on ethics?), but, as an amateur, I have to say that it seems wrong for a tax to be enforced whose proceeds go to an organisation which counts lobbying as one of its activities. That's just me though.

I Wonder...

[Infe]

Would this be legal?

Say MP3.com requires you to rip the MP3s yourself. Now, they first check if you really own the CD. Then they check the MP3 files themselves, and make sure your MP3 files are the exact same as theirs. If you and MP3.com were both using the exact same encoder/bitrate/quality, the files should be exactly the same. So basically, after it is assured that the user DOES own the CD, and DID rip it to MP3, and MP3.com hosts the EXACT same files, would that be legal?

JUST LIKE A RADIO STATION???

[small_dick]

radio stations pay some fees, but nothing even close to paying full price for every track every person hears.

i can tune into a radio station and hear free music all day, record it on a cassette, play it in my car, at a party or for my friends.

but the judge say "no, you can't tune into MP3.COM" sheesh. that seems like heavy discrimination to me.

Re:JUST LIKE A RADIO STATION???

[VirtualAdept]

Except that the difference between radio stations and MP3.com is that radio stations have an arrangement with the owners of the copyright material that allow them to re-broadcast the material. MP3.com did not.

Who needs patented MP3 when there's...

[yerricde]

what's to stop them from pulling a unisys and start charging fees for every use of mp3s? Nothing, AFAIK...

Wide acceptance of Xiph.org's Ogg Vorbis audio compression technology, that's what.

Re:Who needs patented MP3 when there's...

[Jon-o]

Ooo.. I didn't know about that one. Thanks!

However, I expect there will be a HUGE amount of trouble involved in switching over, especially as I don't foresee support in windows media player popping up any time soon.

Are PNGs used much more than GIFs on most websites these days? Only on rather geeky ones, it seems... the unisys hassles went mostly unnoticed.

But it's good to know that alternatives exist. I hope it is developed and implemented quickly.

Diamond Rio, eh?

[yerricde]

I'd like to see a certain country band take on MP3.com/Napster/Gnutella.

A case of bad planning

[Felinoid]

Keep in mind the music industry sees MP3s as the big boogyman.
Now heres MP3.com letting people upload CDs to MP3 for playback anywhere anyplace.
Technicly it's still a personal player service...
However in order to work that copy must be made and held by someone who dose not have a liccens from the artist.

A dangerous ground to start with.. a legally questionable delivery system.. and a target...

Now I'm starting to hear people say "Illegal MP3s" when they mean "MP3s" the whole notion is that ALL MP3s are illegal by default.... Thats the only use for a sound netcaster... I mean no one netcasts radio talk shows like Geeks in Space, or Leet radio or Rush Limbaugh.
[Geeks in Space radio netcast in MP3 format by the people who bring you Slashdot... Leet Radio was exclusively MP3 format... and now Rush Limbaugh is netcasting however not in Napster or other MP3 based format]

Why could you posably want high quality audio if not to steal our music?
Thies people have such egos as to believe all MP3s must automaticly be illegal...

And of course MP3.com puts themselfs PERFICTLY in the way of a lawsute... not very bright...

This was a good idea but it's the WRONG TIME.. First let's establish that files stored in a remote location are still legally in the hands of the person who leases the space. Like rental storage.

Re:First post ( off topic )

[Felinoid]

Your right about the abuse of the AC status
and yes there are quite a few posts where the only object is to annoy people...
Hence they must be AC so we don't know whos door to storm with pitchforks and flaming torches...

What the IP system was designed for

[yerricde]

Premise1: The aim of copyright law is to protect the IP of the owner

According to the Constitution, the purpose of copyright is "to promote the progress of science and the useful arts." Copyright is an artificial right, put in so that art creators would have an incentive to create art.

Re:mp3 illegal

[Felinoid]

Hmm intresting....
Copying is legal as long as it's to an anolog source?

Intresting... but wrong....
If you copy anything and give (or sell) the copy it is illegal. If you rent a video and copy it thats illegal.

Playing music over the radio is "fair use" but doing the identical over streaming audio is illegal. Why?
Recording to anolog tape for personal use is legal but recording to a digital file for personal use is illegal?

The problem is simple... Illegally copying digital files dosn't have the same side effect that illegal copying of anolog data has...
Digital copying dosn't degrade...
As a result ILLEGAL copying has a greatter threat to the bottom line...

Still treating digital mediums as if they were automaticly for criminal use alone.
I mean come on... what in hack is a high speed copying dual tape player for if not for illegal copying? And tapes that correct for distortion caused by those copyers?

They haven't taken action against illegal copying in years and now they know if they don't take drastic action they are toast....

No copying audio for non-personal use is not legal. Not even slightly. Copying digital for personal use should be just as legal as anolog...
There should be no specal exception for digital copying

May I inject?

[Felinoid]

If I play music from my CD player.....
A copy it made from the CD to the playback data buffer and then to the DA converter that becomes audio...
If I play music from My.mp3.com a copy is made from my CD to MP3.com stored there for a time and then recalled later again by me...
The stored copy can only be called by me (the owner of the CD) so only I can use the copy...

I would presume (I havn't read the rulling yet) that the judge is stuck on the idea that during a point in the process the music is stored. This is in effect the only diffrence between the copying from my CD to my players sound chip and copying my CD to a remote location vea MP3.com...

However the remote copy is still technicly in the hands of the owner and thus in the soul command of the only person who can by law control it.
Oh and for the record that person ISN'T the artist.

Legal path dependence

[blicero]

It is an oversimplification to argue, as many here have, that the following two sequences are essentially equivalent:

1. Purchase a CD
2. Rip CD, producing MP3's.
3. Upload MP3's to a remote server.
4. Download MP3's for playing.

and

1. Purchase a CD.
2. Download MP3's of songs on CD for playing.

The second process probably takes literally hours less time than the first, and much less effort. It is incorrect to argue that just because the outcome of both processes is the same, that both processes, as wholes, are identical.

The legality of the CD-to-MP3 path is not a state function. It is very much path-dependent.

It's not a broadcast

[Kris_J]

It's a lot of 1-to-1 transmissions, based on the recipient having a licence to listen, rather than the sending having a right to broadcast.

The judge can't see that my.mp3.com is just a distributed/networked version of how a hard drive works. He also can't see the/which licence (is) being used because it's not a physical thing.

Re:What's the difference between ...?

[Anonymous Coward]

Disclaimer, I am a music lawyer (ok, I'll wait until the boos and hisses stop), but I represent a number Internet music companies (not MP3.com) in addition to recording artists, songwriters and producers, so I have to advise companies dealing with these issues as well as negotiate over the proper bottles of liquor and the right colors of M&M's that must be stocked in the artist's dressing room, so I feel I can be somewhat objective here (though at the end of the day we all have our prejudices). Having read through a few of these threads, I am amazed at the repeated misunderstandings and outright illogical arguments. To clear things up, this case does NOT mean that you cannot make copies of your CD's. You have a right to make a reasonable number of copies for your own personal use, so if you want to copy every CD in your collection into multiple copies of MP3, EPAC, cassette, minidisc, 8-Track, LP, and Piano Roll format, you are free to do so, for your own personal use. However, you cannot give these copies to others. Also, just because you own a CD does not give some company the right to make MP3 copies of CDs it purchases for the purpose of allowing you to listen to its file copies of CDs that you also own copies of. The bottom line is that Mp3.com is a huge company worth hundreds of millions of dollars which fully intends to generate a lot of money in connection with this service. And I am not saying that they do not deserve to make a lot of money, they had a great idea and put together a pretty good system to deliver it, but at best, their contribution only amounts to 50% of the reason that the service is good and valuable, the other 50% (or more) stems from the use of the copyrighted music -- without the music, their service would be meaningless. And if they felt the system had to be set up the way it was (rather than myplay or other systems that primarily provide passive space and leave it up to you to encode your CD's), all they had to do was secure licenses from the record companies. For whatever inexplicable reason, they decided to take a huge risk and make their own MP3 copies of thousands of CD's for purposes of transmitting those files as part of their COMMERCIAL service to their end users. In doing so, they had no choice but to admit they did the copying and there was no doubt that the copyrights in these recordings were owned by the major labels and that MP3.com did not have permission from these labels to make these copies. That equals copyright infringement plain and simple, unless you can prove you have a defense under the law. MP3.com took its shot at proving "Fair Use" and lost because nearly every element of the Fair Use defense under the law cuts against them in these circumstances. First, the purpose of their copying was commercial (i.e., the creation of a business that would generate revenues for MP3.com by providing a service using MP3 copies of these copyrighted sound recordings). Second, what MP3.com did was not "transformative." And since many of you have programming backgrounds (disclaimer # 2, I am neither an engineer nor a programmer), I understand your impulse to argue how the technology works and how it is "transforming" these sound recordings but that is simply not what the law is talking about here. With respect to a creative work like music, what is relevant is whether creative transformation has happened. 2 Live Crew taking Roy Orbison's song "Pretty Woman" and making major changes to it to come up with "Ugly Woman" is what the law means by transformative, not changing a sine wave or making some other imperceptible change. It is easier to prove transformation with non-creative works such as databases (i.e., lifting data from a database to create something else with that data). It is much more difficult to prove transformation with creative works like music and art. Obviously there is a gray line where something becomes transformative, but it seems to me the Judge got it right and what MP3.com did did not rise to the level of transformation under the law. There are also a handful of other factors that the court looks at in determining fair use that hurt MP3.com as well (in particular that they copied each song in its entirety, which they obviously had to do for their service to make sense, unless you want to listen only a bunch of snippets of songs). So all in all, I do not see this decision getting overturned and the only reason we are even talking about all of this is that MP3.com inexplicably walked into a buzzsaw rather than act like a responsible company and simply approach the rights owners and negotiate licensing deals. While doing so probably would have cost them license fees amounting to a substantial chunk of revenues from the service, that is only fair as a large portion of the value of the service is derived from someone else's intellectual property (the music). On that score, I do not understand why everyone is crying for poor MP3.com the $400 million company. All this talk about revolution and the new digital world reminds me of that Chris Rock rant about some people being too happy that OJ was acquitted -- "I didn't get my OJ check" (that is an example of fair use). Similarly, I am amazed at all the rah rah posts on behalf of megalocorporation MP3.com -- a company populated with yuppie (paper) millionaire businessmen with scores of BMW's and Porsche's in the company parking lot. I see these people as no better (or worse) than the record companys I constantly argue with on behalf of my artist clients. At the end of the day, I would rather see the money in the pockets of the artists (many of whom lived in abject poverty for years on end until they finally hit it big). And the bottom line is I do not see why Michael Robertson should put millions into his pocket without paying license fees to those that played a major part in helping to generate those monies. And contrary to popular myth, though record companies do many things that I hate, they do spend significant monies helping to promote and "break" new artists, while Internet companies have yet to really step up to the plate in that regard. For a new act, a major label can often end up spending $1 Million once you add up the artist salaries, promotion expenses, etc., so you can see why they want a piece of the action wherever there is money to be made on their recordings. Also, contrary to popular myth, record companies do in fact pay royalties and some artists make a pretty good living. Though I obviously would like to see improvement in that area, that does not mean MP3.com should pocket all of the $$ generated from this service. And their losing this case does not mean that some evil force is preventing you from listening to your music however you see fit,it just means that MP3.com can't provide this service without compensating the owners of the copyrights. The RIAA and MP3.com may very well settle this case, or they may not and MP3.com may crash and burn (either because they are hit with hundreds of millions of dollars in damages or because, or because the court prohibits them from using these Mp3 files, or because they simply don't provide the best service). Either way, services like this will continue to be developed and the technology companies and the music companies will figure out a way to share the money fairly. Indeed, the my.mp3.com service will likely become irrelevnt soon anyway. At some point we will have no need for CD's or downloadable files -- if I can listen to anything anywhere anytime on demand, why do I need a copy of it. One final myth to dispel -- radio broadcasts of music are not comparable to MP3.com's use of music files. To understand this you first have to understand that there are actually 2 copyrights in musical recordings: (1) the copyright in the SONG (i.e., the lyrics and musical notes that can exist in my head, be written out on a piece of paper, or be recorded by a band), and (2) the copyright in the RECORDING of a particular song. For example, Guns N Roses wrote the SONG "Sweet Child Of Mine" and they (or their publisher) own the copyright to that song. Guns N Roses also recorded that song and included that RECORDING on one of their records for Geffen Records (Geffen owns the copyright in that RECORDING and GNR receives royalties from Geffen's exploitation of that RECORDING). Sheryl Crow, who did not write the SONG, also recorded "Sweet Child Of Mine" for another record company who owns that sound RECORDING. So you can see that the writer/owner of the song may not be the same person as the performer/owner of the sound recording. Accordingly, MP3.com actually has infringed 2 copyrights every time it copied a track. What we are talking about here with the RIAA lawsuit are the recordings (which are owned by the major record companies) -- there is also a separate lawsuit that was filed by a number of owners of copyrights to various songs. So the reason that radio is irrelevant here is that up unitl about 1972, the United States copyright act did not even recognize recordings as copyrights (talk about the law being slow to react to technology). And when the copyright act was amended to include recordings, the congress did not give them the full protection that songs had. Though the owner of a copyright in a song always had the exclusive right to reproduce, distribute and publicly perform that song (i.e., if someone else wanted to use his song, in general that person had to get permission and pay a license fee), the owner of the recording copyright only had the exclusive right to reproduce and distribute that sound recording. For some reason, the law did not provide them with the exclusive right to publicly perform their recording. As a result, radio stations have always had to pay license fees to the copyright owners of the SONGS (through their agents BMI and ASCAP) for the public performance of the songs over the radio. However, because the copyright act did not grant the owner of the RECORDING an exclusive right to publicly perform his recording, the radio stations have been free under the law to broadcast the recordings without paying royalties to the owners of the copyrights in the recordings. That is still the case today for traditional terrestrial ANALOG broadcasts. The primary reason this is the case was due to the historical fact that recordings have not been recognized as copyrights as long as songs, and because the NAB (the radio industry lobby) is more powerful than the RIAA (the recording industry lobby). Why this does not help those who transmit music over the Internet is because the copyright act was again changed in 1995 to provide owners of copyrighted recordings the exclusive right to publicly perform their sound recordings via "digital audio transmissions" which is quite obviously everything on the Internet, including MP3 files. So anyone that wants to transmit music to end users on the Internet via digtital audio transmissions, must get a public performance license from the owner of the SONG (usually throught the BMI/ASCAP license) as well as a public performance license from the owner of the RECORDING (usually the record company or RIAA for known bands, or the artist if there is no record company). And no it does not matter that any particular transmission may only be listened to by one person, its still a public performance and must be licensed. So that is it, all MP3.com had to do was make an informed decision and cut a licensing deal. As part of those licenses they could also have secured the necessary rights to reproduce the songs and the recordings. They did not and are suffering the consequences. This is not good Mp3.com vs. bad record companies. This is a minor speedbump for consumers who like the service, but other legal versions will follow. So anyway, I apologize for what has become avery long and I am sure to many of you very boring post. If you have gotten this far, I am sure some of you have headaches by now, I know I do. But I really do get bothered when I see endless kneejerk reactions about the good MP3.com/Napster and the Evil Record Companys and the Money Grubbing Artists (after seeing the Behind The Music on Metallica and what they went through to make it -- nothing but one slice of bologna for a days meal during some of the lean years -- I do not think anyone has cause to bitch if Metallica does not want their music on systems that have a high percentage of piracy going on or if they want a cut of any service that seeks to make money off of their music). I do not really care whether any particular companies (Internet, Record, or otherwise) survive or not. Hopefully technology will make it easier for more artists to make a living and expose their art to greater numbers of people and at the same time allow consumers to have even greater choice and ease of access to more music at lower prices so that everyone comes out ahead. For me, if I could not be a music lawyer, there is no way I would be a lawyer. First and foremost, I am and have always been a music fan and was once a garage musician (yes I can even read sheet music). And the most rewarding part of my job is helping unknown bands that I believe in make it, primarily for selfish reasons that I want to see the bands and music that I love succeed. So I just want to see a system where the people and companies who make and fund the songs and recordings are fairly compensated out of the money that is generated from the use of their copyrights, so that these people and companies will continue to create new music (sure, some of it will suck, but we can deal with the BackDoor Boys and Britney Spears of the world as long as they also put out the real deal as well). If the artists and record companies do not share in that money, I am afraid you will see less money spent on artist development and fewer artists willing to make the sacrifice of years of their life in poverty if they feel they will never be able to support themselves doing what they love to do. And while I do not for a minute think that would mean there will be no more music, I do think it would mean there would be few if any "superstar" artists. Instead, artists would tend to be more regional based (with additional scattered worldwide supporters on the Internet) and would be limited to smaller scale of touring and sales of product because few would be willing to pay the costs that go into recording, touring, promoting, marketing, etc. Not to say that would be the end of the world, but it would be sad. Arena shows and superstar artists have been a unique and great part of America and the music it created. I can still remember as a high school senior driving 3 hours (in my friend's mother's giant brown Ford LTD, which we dubbed The Turd) to see Van Halen play in front of 20,000 screaming people during its 5150 tour (I know, I'm dating myself and Van Halen is no longer cool -- but you can plug in whomever you want) and then proceed to get ripped on Mickey's Wide Mouths, puke over the balcony just before the encore and then spend the rest of the evening evading security. More recently, I have been similarly moved by Rage Against The Machine, Green Day and Social Distortion (minus "The Turd" and the puking over the balcony). So just think twice next time you rail against record companies and bands on behalf of MP3.com, what you might be doing is supporting the early retirement plans of 30 year old MP3.com employees (many of whom care little about music, Michael Robertson has admitted as much himself) to the detriment of some young new extremely talented artists living in poverty trying to make it big who may give it up in favor of a 9 to 5 job that allows them to feed their family. Ok, I am done ranting, so Let the hammering begin, take it easy on me.

The RIAA vs. mp3.com

[acb]

The RIAA have allegedly been trying to manipulate mp3.com's stock price for some time to push it out of business.

There are now rumours of a settlement in the case, which would give the RIAA (i.e., tbe Big 4 record companies, Warner, Seagram, Sony and BMG) control of mp3.com. Given that the verdict is in effect a signed death warrant for mp3.com, the RIAA can dictate the terms of any settlement; letting Michael Robertson and so keep a minority stake in a viable company can be considered most conciliatory.

Re:unencrypted mp3 == circumvention device?

[acb]

Under some readings of the DMCA and the WTO treaty, unencrypted media formats that compete with encrypted ones (i.e., SDMI, DVD) could be considered a circumvention device, and thus illegal. How the courts read the law is yet undecided, but the RIAA have billions to spend on persuading them to see things their way.

If the rumoured settlement does happen and the RIAA gets control of mp3.com, it will be interesting to see how mp3.com changes its technical aspects. Will downloaded MP3s be wrapped in a serialised player/decryptor EXE (Windows/Mac only, presumably), or replaced with a SDMI format?

So play royalty

[Snaller]

Radio stations pay royalties every time they play music on the air.

Indeed, their pound of flesh to the greedy industry, so that's possibly where it should be heading for mp3.com - they should pay a royalty - a very small one though, since they are only performing for one.
The *copies* mp3.com made may be legal.
Copies? Define copies? I have one CD, i still have one CD - they have made a temporary medium conversions necessary for transmission of the song to a rightfull customer.
Is a radio wave a copy too? When the signal has been sent it just keeps propagating outward - if someone was on the moon they could pick it up, or on mars. Indeed if you had a spaceship and was crusing the leading edge of the soundwave you could hear the song over and over - is this a copy? (do you consider it covered in the royalty, eh?)

mp3.com does not have the right to distribute the music. Period. Copy it all they want.. they can't *PROFIT* from that copying.
That is your contention - any dictionary definition of "distribute" i can find does not support that conclusion - they are NOT distributing, because they are only delivering it to one person - the owner. The fact that a song may be owned by several different customers is what confuse some people, but that doesn't make it distributing. AND - they are not profiting from what you call copying - they are profiting from delivering.


mp3.com has *no* agreements with the industry.
Perhaps the radio analogy is not apt then. After all the are only delivering it to one legal customer.
I wonder, if i were to phone home and ask someone at home to put the CD on and play it into the phone, if that would be fineable - and if it ISN't - what if mp3.com puts up large CD servers and instead of mp3, and streams them the right owners of the Cd's ? Of course the sound might suffer, but then innovation is not the keyword of society today, eh?

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Banner ads are GIF because ILOVEYOU

[yerricde]

Are PNGs used much more than GIFs on most websites these days?

I'll tell you why not: Name one browser that supports MNG.

...

OK. So you can't think of any. Now name one other open-standard format (GIF is an open standard; it just isn't freebeer to implement) that supports animation and is supported by the major Web browsers (NS 4/6, IE5, Opera).

...

Now you see why sites use GIF. It's the only animation format that browsers support. Granted, there is JavaScript rotation of PNG, but what if a fella has *Script turned off to stop email viruses?

Re:Reasonable Absolutely

[zelda78]

i think appeals are going to be pending, so its going to be quite some time before the entire thing is played out

Mp3's aren't an easy way for viruses to spread

[Byter]

1) The old mp3's are hidden.
2) ILOVEYOU are appended to the end of the existing mp3's, OR it replaces the mp3.
Now if it's appended to the end of an mp3, I don't
see how it would run as vbscript.
If it replaces an mp3, then when you try to download an mp3, you'll notice that the mp3 is a BIT small for a normal mp3.

Either way, I think you'd notice before infection.

Legal vs. Technical disconnect

[El]

So what the honorable judge is saying is that MP3.COM let's users upload their MP3 files to their server and play them back, it's legal. Even if they install "compression" software on their server that detects duplicate files, and replaces duplicates with a link to the first file. However, if MP3.COM uploads any MP3's ripped from CDs to this very same database, it's illegal? This seems remarkably inconsistant from a technical standpoint.

IANAL, but this probably actually makes sense from a legal standpoint; they fact that two files are abolutely identical bits is legally irrelevant if the "provenance" (i.e. the legal source of the files) is different.

Conclusion: MP3.COM can make a slight change to it's service to require ripping and uploading songs, rather than just checking the CD serial number. This will take much longer for users, but will require no additional disk space on the MP3.COM servers, as surely replacing a string of bits with a pointer to an identical string of bits is a legitimate form of compression.

Re:problem

[Mindwarp]

If somebody else hacks into your system and takes a copy of your music then they are breaking the law by committing unauthorized access to your account or hardware.

If you place the music on the net and say to people 'take a copy if you want' then you are breaking the law due to copyright infringement.

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