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Judge Rakoff Explains MP3.com Ruling

Posted by Hemos on from the finally-something-to-post dept.

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. "

88 of 252 comments (clear)

  1. Reasonable by phil+reed · · Score: 2

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


    ...phil

    --

    ...phil
    "For a list of the ways which technology has failed to improve our quality of life, press 3."
    1. Re:Reasonable by technos · · Score: 2

      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?

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    2. Re:Reasonable by mszeto · · Score: 2

      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?

    3. Re:Reasonable by wildcardj · · Score: 2


      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.

    4. Re:Reasonable by boing+boing · · Score: 3

      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.

    5. Re:Reasonable by Tackhead · · Score: 3
      > 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! :)

    6. Re:Reasonable by StenD · · Score: 2

      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.

    7. Re:Reasonable by BeBoxer · · Score: 3

      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.

    8. Re:Reasonable by mariet · · Score: 2

      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

    9. Re:Reasonable by phil+reed · · Score: 2

      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

      --

      ...phil
      "For a list of the ways which technology has failed to improve our quality of life, press 3."
  2. Interpretations of IP by Stickerboy · · Score: 5

    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

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    1. Re:Interpretations of IP by Mindwarp · · Score: 5

      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...


      --

      --
      The gift of death metal does not smile on the good looking.
    2. Re:Interpretations of IP by Kaa · · Score: 2

      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

      --

      Kaa
      Kaa's Law: In any sufficiently large group of people most are idiots.
    3. Re:Interpretations of IP by StenD · · Score: 4

      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.

    4. Re:Interpretations of IP by Anonymous Coward · · Score: 2


      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.

  3. What's the difference? by (void*) · · Score: 3
    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.

    1. Re:What's the difference? by Kaa · · Score: 4

      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

      --

      Kaa
      Kaa's Law: In any sufficiently large group of people most are idiots.
    2. Re:What's the difference? by (void*) · · Score: 3
      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.

    3. Re:What's the difference? by john_many_jars · · Score: 2
      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.

    4. Re:What's the difference? by (void*) · · Score: 3
      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.

    5. Re:What's the difference? by Tackhead · · Score: 2
      > 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?

    6. Re:What's the difference? by Sloppy · · Score: 2

      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.


      ---
      --
      As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
  4. Protecting future markets. by mikej · · Score: 2

    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.

    --
    Ideology breeds Hypocrisy. Just how much is up to you.
  5. A Wish For A Better Explanation by Lagged2Death · · Score: 2

    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.

  6. What is MP3.Com adding? Let's look... by JoeShmoe · · Score: 5

    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

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    1. Re:What is MP3.Com adding? Let's look... by Kaa · · Score: 2

      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

      --

      Kaa
      Kaa's Law: In any sufficiently large group of people most are idiots.
    2. Re:What is MP3.Com adding? Let's look... by Tackhead · · Score: 5
      > 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.

    3. Re:What is MP3.Com adding? Let's look... by briancarnell · · Score: 2

      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.

    4. Re:What is MP3.Com adding? Let's look... by Chris+Johnson · · Score: 2
      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...

  7. MP3.COM ruling is good by briancarnell · · Score: 2

    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).

    1. Re:MP3.COM ruling is good by Wah · · Score: 2

      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.

      --

      --
      +&x
    2. Re:MP3.COM ruling is good by SuperKendall · · Score: 2

      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.

      --
      "There is more worth loving than we have strength to love." - Brian Jay Stanley
    3. Re:MP3.COM ruling is good by SuperKendall · · Score: 2

      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!

      --
      "There is more worth loving than we have strength to love." - Brian Jay Stanley
  8. Important to understand Fair Use doctrine by dave_aiello · · Score: 5
    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

    --
    -- Dave Aiello
  9. How does this differ. . . by Raffy · · Score: 2

    . . . 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

    --
    Rafe

    Opinions expressed by the author may not actually exist in the wild.
    1. Re:How does this differ. . . by briancarnell · · Score: 5

      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.

    2. Re:How does this differ. . . by interiot · · Score: 2
      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.
      --

    3. Re:How does this differ. . . by Chris+Johnson · · Score: 2

      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.

  10. Re:mp3 by briancarnell · · Score: 2

    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.

  11. Is it really about anti-piracy? by Antitorgo · · Score: 2

    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).

  12. Re:Hello Hemos! by Kintanon · · Score: 3

    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

    --
    Check out JoshJitsu.info for Brazilian Ji
  13. Re:Reasonable Absolutely by havardi · · Score: 2

    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???

  14. Digital copies by Kaa · · Score: 5

    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

    --

    Kaa
    Kaa's Law: In any sufficiently large group of people most are idiots.
    1. Re:Digital copies by XScott · · Score: 2

      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.

    2. Re:Digital copies by G27+Radio · · Score: 3

      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

  15. Isn't my.mp3 like a radio? by DeepDarkSky · · Score: 2
    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.

  16. Re:How will this affect everyone? by Kaa · · Score: 3

    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

    --

    Kaa
    Kaa's Law: In any sufficiently large group of people most are idiots.
  17. some lame points by ArchieBunker · · Score: 2

    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.

    --
    Only the State obtains its revenue by coercion. - Murray Rothbard
  18. Judge Rakoff, get a clue. by C+R+Johnson · · Score: 4

    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.

    --
    The alternative to limited government is unlimited government.
  19. Re:Hello Hemos! by Pfhreakaz0id · · Score: 3

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

    --
    DO NOT DISTURB THE SE
  20. They're adding packaging, not expression by Sloppy · · Score: 2

    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...


    ---
    --
    As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
  21. Re:How will this affect everyone? by Sloppy · · Score: 3

    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.


    ---
    --
    As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
  22. Unfortunately Omission by Sloppy · · Score: 2

    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).


    ---
    --
    As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
  23. Chuckie explains Judge Rakoff's Ruling by ch-chuck · · Score: 4

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

    Any questions?

    --
    try { do() || do_not(); } catch (JediException err) { yoda(err); }
  24. Digital medium comments... by GeoShine · · Score: 2

    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

    --
    : "I abort and kill -9 him in my caffeine dream" - fridge code
  25. Alternate defence by kruhftwerk · · Score: 2
    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?

    --
    --www.mp3.com/kruhft--
  26. Adding something = Fair Use ? by redelm · · Score: 2

    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.

  27. My.warez.com by havardi · · Score: 2

    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

    1. Re:My.warez.com by cantherius · · Score: 2

      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 :)

  28. Cacheing takes a hit by Effugas · · Score: 3

    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

  29. Slashdot interview! by Golias · · Score: 2
    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.

    --

    Information wants to be anthropomorphized.

  30. Re:Lay off the crack, man by Raul+Acevedo · · Score: 2

    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.
    ----------

    --
    In a real emergency, we would have all fled in terror, and you would not have been notified.
  31. Transforming Content? by The+Cat · · Score: 2

    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.

  32. Fair use and "repackaging". by seebs · · Score: 3

    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.

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  33. Re:Subjective morality (Was: MP3.COM ruling is goo by Wah · · Score: 2

    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.....

    --

    --
    +&x
  34. Apache story *WAS* posted by Col.+Klink+(retired) · · Score: 2

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

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

    --

    -- Don't Tase me, bro!

  35. Interformat copying as fair use...citation? by Robotech_Master · · Score: 2
    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?
    --

    --
    Editor Emeritus and Senior Writer, TeleRead.org
  36. This Ruling Against Precedent by Randym · · Score: 5
    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.

    --
    DNA is a Turing machine. You, however, being dynamic and emergent, are not.
    1. Re:This Ruling Against Precedent by ecampbel · · Score: 2

      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.

      --

      Sig goes here
    2. Re:This Ruling Against Precedent by mindstrm · · Score: 2

      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.

  37. Re:Lay off the crack, man by gilroy · · Score: 2
    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.

    --
    The Mongrel Dogs Who Teach
  38. Re:How will this affect everyone? by Jon-o · · Score: 2

    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...

  39. Rakoff contradicts himself? by zipwow · · Score: 2

    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

    --
    I don't know which is more depressing, that 2/3 didn't care enough to vote, or that 1/2 of those that did are crazy.
  40. Because.. by mindstrm · · Score: 2

    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*

  41. Hunh? by mindstrm · · Score: 2

    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.

  42. It's bad because.. by mindstrm · · Score: 2

    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.

  43. Radio stations by mindstrm · · Score: 2

    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.

  44. JUST LIKE A RADIO STATION??? by small_dick · · Score: 2

    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.

    --


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  45. Who needs patented MP3 when there's... by yerricde · · Score: 2

    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.

    --
    Will I retire or break 10K?
  46. Diamond Rio, eh? by yerricde · · Score: 2

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

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    Will I retire or break 10K?
  47. A case of bad planning by Felinoid · · Score: 2

    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.

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    I don't actually exist.
  48. What the IP system was designed for by yerricde · · Score: 2

    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.

    --
    Will I retire or break 10K?
  49. It's not a broadcast by Kris_J · · Score: 2
    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.

  50. Re:mp3 by Chris+Johnson · · Score: 2
    _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 :) )

  51. The RIAA vs. mp3.com by acb · · Score: 2

    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.

  52. Re:unencrypted mp3 == circumvention device? by acb · · Score: 2

    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?

  53. Banner ads are GIF because ILOVEYOU by yerricde · · Score: 2

    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?

    --
    Will I retire or break 10K?
  54. Re:problem by Mindwarp · · Score: 2

    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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    --
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