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RIAA Claims Initial Legal Win vs. Napster
A number of people have written in with the initial news blurb that the RIAA [?] has won the initial battle against Napster. The US District Court in San Fransico has ruled that Napster is not just a "mere conduit" for files, but that it is actually liable for material transfered by the program. This comes on the heels of MP3.com's recent loss to the RIAA as well. Ouch.
I've got to question the defense's legal tactics of presenting no other witnesses or information besides a tape recording loop of Shawn Fanning screaming, "You can't stop the technology!" over and over.
Cheers,
ZicoKnows@hotmail.com
Napster told people where to find files. they didn't distribute any files, and responsible users wouldn't have broken any laws. Those people who did choose to break laws did so by their own actions, and are the ones soley responsible.
You can find mp3 files on any search engine or IRC client.... what's the difference besides efficiency?
very bad for everyone if this story is true. I don't care about mp3 files at all personally, but this kind of precedent is a very bad one for freedom of information in general.
________
1995: Microsoft - "Resistance is futile"
Is the judge a retard? They just ruled that an ISP is not liable for what passes through their networks and now they do this?. Our legal system is seriously fscked up.
This seems to be little more than a RIAA blurb press release to trumpet the news from Friday.... this is generically known as "spin." Other articles I read said that there were matters of fact to be determined by a jury... that means this case is going to progress.
(IANAL - I am now a lawyer - passed the bar exam on Saturday!)
==
"This is the nineties. You don't just go around punching people. You have to say something cool first."
So what do you people think about this recent streak of losses against the "Big Bad Corporations"?
Disclaimer: I am the Poll Mastah. I express my opinions in terms of poll suggestions.
Poll Mastah
``Napster is about facilitating piracy, and trying to build a business on the backs of artists and copyright owners,'' Rosen of the RIAA said.
If only we could make that illegal, then we might actually have reasonably priced music where the artist actually made money from sales of recordings.
That said, this isn't really a full judgement. Napster was requesting a summary judgement. IANAL but I believe that means that we still have several months of court battles ahead to see what's up with Napster.
Unbreakable toys can be used to break other toys.
OK, so they will probably crush Napster, the company will go down, end of case. I do sympathise with the developers there, but other than that I don't care much about its future, because of the original flaw in the design - centralized db. Once you have that, "they" have someone to sue, "they" have IP addresses to block, and so on. "They" will always win in such situation.
But there is something beautiful around the corner - gnutella and its open source clones. Yes, I know none of them work as well as napster, but it's just a matter of time and figuring out how to cache headers efficiently. Once the development is de-centralized and GPL-ed and file distribution is also de-centralized - what can "they" do?!
Sue everyone? They might, but it is much, much harder than suing just one company, especially taking into account that the end-users don't reap any direct financial benefits, unlike Napster.
While on the subject - what are the best open-source gnutella clones?
This is kinda interesting. What is a mere conduit, what is a provider.
Okay, if I am an ISP, and people can automatically publish a website, everyone has a directory to store stuff in that is web accessable, I'm a conduit. I can't prevent people from putting stuff up. I can take it down if notified but prior restraints on speach in this case would be a nightmare.
If I run an IRC server, I'm a conduit, speach flows freely, files flow freely, and there is little that I can do.
However, Napster is more than a funky IRC server. They provide a search engine to find a song based on the title and artist. They automatically makes available on your machine and music in the directory that you download do. How is this a "mere" conduit.
I mean, if I provide a forum to publish files and tell people that I'll take down illegal ones, I'm argueably a conduit.
However, Napster does not GIVE people the opportunity to share files, it defaults to doing so. I've been ripping my CDs recently. Some are badly damaged, and I replace the missing songs with downloads from Napster. Am I doing anything illegal, no. In fact, I can arguably download music I don't own legally. Copyright refers to distribution, not use. I can borrow my friend's CD. If make a SINGLE copy of it for personal use, I am under fair use. If my friend makes me a copy of his CD and hands it to me, it is illegal, as he is distributing copyrighted works.
Now, Napster's default to share MP3s and make them searchable puts it into a grey area. The fact is, I, like most people, have a single directory of MP3s (subdirectories, but a single directory). Some of the songs are copies of music I bought a copy of, some are songs that I have not bought a copy of, and some are songs that are freely downloadable.
However, Napster makes NO effort to prevent me from sharing illegal to share files. So far, they are still, IMO, okay. Napster AUTOMATICALLY shares out all the songs in my directory that I download to. If I am downloading replacements for damaged tracks, it is legal for me to download them. HOWEVER, Napster will AUTOMATICALLY share those same tracks out. That to me makes Napster a publisher.
They are providing software that shares out my copyrighted songs. I DIDN'T choose to share them out, Napster did. Therefore, Napster is breaking the law.
Alex
So next I guess they're going to log onto that central gnutella server and start trying to figure out how to shut that one down too! Oh, wait....
Hell I am going to uuencode all my mp3's and post them to slashdot forums, slashdot will be sued in days... I mean, I don't have any mp3's, but if I did...
(Are they still watching me?)
Seriously, though, I think the RIAA should sue Iomega for creating the zip disk and Al Gore for creating the Internet, both which are used to trade
The Information Age can wait dammit, the Musical Revoluation (which oddly enough is also the name of a boardway musical) must come first.
"`Ford, you're turning into a penguin. Stop it.'" -THHGTTG
I was thinking about this whole thing yesterday.
Future possiblilty, no money in the actualy sale of music. All revenues come from concerts and merchandising.
Try this for a scary scenario:
----------------------------------
Assumption: sombody will figure out how to make BIG money off of the music industry, don't ever doubt it. We have all seen the mass appeal of they annoying boy/girl-manufactured bands. The cash behind these can easily be seen as an marketing investment rather then a "production investment". The old model held that Artists' music was the "product" of their "labor" wether paid or not. When it was demonstrated that an artist had a good "product" that sold (I am assuming that an artist with real talent + marketing will usually outlast one that it just promoted by marketing only, e.g. spice girls, n'synch, BSboyz, etc...), money was made off that product (albeit most of the money going to the recording company). If a artist did not like dealing with the recording company, he or she could get out of the contract somehow and change companies or start their own based on the populatiry of their "product".
So imagine this, with the near impossibility of making money off of the music itself, the "product" has been stripped away from the artist, and there goes the artists leverage.
So what happens next? The recording industry has funds that no private artist (and few corporations that might be interrested in this industry) can match. They decide on a "new business model" as follows:
Put together a "project" (i.e. artist or group)that has mass appeal with a trademarked image, free kickass videos and movies, tons of pricey promotional items, trademarked image, with some snappy upbeat generic pop. Indundate the mass populus with it, upurchase tons of radio and TV airtime, and let it take off. By all means give the music away free, videos too (can't watch a video on a Diamond Rio eh?). Charge up the ying yang for concerts that are like 3 ring circuses + Disney extravangas! In effect make that group a brand name!
Basically its the same old business model, out market your competetors (other non-record industry affiliated artists, and believe me this is fair), get the image and trademark down, and copyright the hard goods, and let the bucks roll in.
Kinda scary huh?
A recording industry trade group, announced today that they will be expanding their lawsuit to include other software vendors including Microsoft Corp. A representative for the RIAA remarked that because of the resent victory against the hacker program Napster, they feel the path is open for closing all piracy havens.
The RIAA claims that Microsofts "Network Neighborhood", when combined with the search functionality of the suspiciously named "Find..." command, can be used to search for and copy copyrighted materials.
Microsoft rebutted saying that the "Network Neighborhood" is an innovative tool used to aid the flow of information between computers. They went on to say that this technology, which can be used legitimately, is already in jeapordy if the Justice Department breaks the company apart. "Without a central leadership, invention will cease in the Windows Operating system. A second lawsuit would make it difficult for Microsoft to compete against other insurgent companies and would stifle the global economy," said a Microsoft representative.
The RIAA rejects this argument as handwaving. They feel there is no economic guarantee for any company. Individual artists, on the other hand, deserve the fullest protection under the law in order to make a profit for their protecting trade group.
Napster, meanwhile, welcomes the opportunity to work with the software giant, Microsoft in its epic battle against the recording industry giant. A spokewoman for Napster said that their position in the lawsuit is comparable to the pebble David used to slay Goliath. She neglected to mention which company was Goliath.
U.S. District Court Judge Marilyn Patel in San Frasisco mentioned that because of the magnitude of the case, millions and perhaps billions of U.S. government money might have to be spent in lawyers' fees during the case. "This case promises to create a larger commotion than Kennith Starr or Judge Ito every accomplished," she commented.
There was an interview in Salon today with the Napster CEO. I dunno, Napster seems more and more like a bunch of profiteers all the time. Plus the CEO seems a little over-optimistic. Information only wants to be free until the servers get unplugged. I kinda hope that this victory for the RIAA pushes along development on Gnutella, and to a greater extent, Freenet. A much more ideal situation would be one where no matter what laws are passed, the system remains intact.
Now they are trying their best to stifle any attempts to connect artists with the buying public via any methods other than the old traditional method of going through a traditional label (which are members of RIAA).
(And don't give me the tired old excuse that CDs are "worth more" that cassettes due to their higher quality. If that logic held, then that new P3 that you bought to play online 3D first-person shooters should have cost you several million dollars (compared to an original Tandy TRS-80 4K computer with cassette tape drive, circa 1978...))
I can borrow my friend's CD. If make a SINGLE copy of it for personal use, I am under fair use.
Not quite. He can make a copy for personal use, you cannot. And if he gives away a CD that he has made a copy of for persona use, then he is obligated to destroy the copy(s) that he made.
I suppose that it would be somewhat legal to make a copy for personal use (perfectly legit), then loan the CD for an indefinite time to someone else. That should be within the letter, but certainly not the spirit of the law.
"Politicians are interested in people. Not that this is always a virtue. Fleas are interested in dogs." P.J. O'Rourke
Given that the RIAA has stolen and gouged customers and musicians for decades, there is only one reasonable way to stop them -- use ONLY free music.
Here are some ideas:
1) Check out as many cd's as possible from local libraries. Reduce them to mp3 format and place them on your own server. If you do not have access to a server for the necessary amount of time, burn copies of CDs and distribute them to your friends.
2) If you must buy CDs, do so only from used music stores or thrift shops that do not carry new CDs and are not paying the corporate music machine. This cuts the revenue stream to the RIAA corporations.
3) Enjoy free music from the mp3.com independant bands, rather than RIAA supported corporate music.
4) Consider researching/finding a radio plugin card that works under your OS of choice. Set it up such that a simple tap of a key starts/stops recording. With a decent radio station (that doesn't voice over the start and finish of songs) this could be an excellent source of free music for distribution via CD or server.
5) Above all, ridicule 'tallica and dre whenever and however possible -- independence and freedom were great things when these musicians were hungry, but know that they've had a taste of corporate greed, there's no way back.
The only way to stop the machine once the legal system starts supporting it is direct noncompliance. Insure that on a daily basis, you act to reduce the RIAA member's revenue streams wherever possible.
Should reasonable alternatives raise their head (limp bizkit) don't shy from buying their stuff! these are the musicians with guts.
Treatment, not tyranny. End the drug war and free our American POWs.
See my user info for links.
This sets no precedent whatsoever. If napster was a file sharing service which just happened to transfer MP3 files, it wouldn't have jumped into the spotlight. Instead Napster is an MP3 sharing service. the vast majority of files it transfers are illegal. If "information wants to be free" is really true, how come no one is posting Windows 2000 CD images on their websites? What about publishing Linux distributions without even a word mentioning the source? Because that information is owned by someone else. Why does everyone treat music as being something different. If you want to share your musical tastes with your friends, invite them over to your house, go to see a show, encourage them to get the CD or whatever.
What's it going to take for people to realize that Napster is actively sapping revenue's from artists? They're taking what artists sell and giving it away for free. That's what Microsoft did to netscape and that was wrong. And Napster is far from altruistic... They're a company. They're making money off the artists involved. How else would they come up with $2 million to fund Limp Bizkits tour? Why shouldn't the artists have a crack at some of that money?
Could someone please publish a classified ad, perhaps in the NY Times, which says: "I have some copies of Metallica tapes. Call me and I'll give/sell you one". Then sit back and watch the music industry lawyers duke it out w/ the NY Times lawyers.....
There are the laws, on the one hand, and then there is what people DO. More and more, people are going to trade digital music, video, etc. The courts and companies will catch up once it's a fait acompli.
Maybe we'll have to switch to Gnutella for a while. Maybe Freenet. Maybe some stuff will be hard to find for a while. But we will continue to share electronic data.
While Napster's chances in the case are probably not good, Judge Patel is probably the most liberal federal judge in California (she was the one who briefly overturned the death penalty in California a couple of years ago). So if there is any judge who would rule in Napster's favor, it is probably her. She also has a college-aged son, so she may be more sympathetic toward mp3s than other judges would be.
"Don't blame me, I voted for Kodos!"
I think that the reason that noone cares is that:
(A) noone is actually taking anything from them. Their artificial rite to profit from the work is being infringed, but deep down, noone really believes in "intellectual property rights" the way that the RIAA/MPAA wants us too. Think about it. If you carry this a bit further, you will have college students signing contracts not to infringe on the IP of their professors by doing differential equations without paying a fee to them. Dummies guides which only license the knowledge inside. It's all plausible to do with law if you really buy into the IP stuff.
(B) These people would have more of a moral leg to stand on if they didn't learn most of what they know from everyone else. If they grew up inside of a plastic box and were never taught english or given musical lessons, they'd have more of a right to call what they do their property. As it is, when they learned the musical theory of thousands of people before them, how to play from their instructors, and the language they sing in from the people around them, they are not in a very good position to take the moral highground and claim that their songs are really theirs in some fundamental way. Let's take a random example: Britney Spears "Baby one more time." The use of the term baby as an endearment isn't hers, it was around a lot longer than that. The phrase, "one more time" is also a normal english gramatical construction far predating her existence, let alone her song. So while there is something original in putting the whole thing together the way that she did, it certainly isn't hers alone. Why should the contributions of everyone else, which does make up the majority of the song if you analyze it, be public domain for her but not the other way around?
IP was created simply to encourage people to innovate, not because anyone thought that it really is the moral way things are. If you think about, the RIAA uses a hell of a lot of stuff that other people came up with, repackages it, and calls it their own. Musicians add something that wasn't their before, but not that much most of the time.
It makes sense to provide a way for people to profit off of their purely intellectual work to encourage them to do so, but to think of this as a given right when they themselves have recieved so much from the public is just ridiculous. If they can prove that they 'created' their work entirely, then IP would make sense. As it is, most people could only really convieve of it as a legal convenience if they thought about it.
(C) Most of the time the music isn't worth it. I know a lot of people who would be more sympathetic to the RIAA if the RIAA wasn't all about fleecing everyone that they can. From what I understand they fleece the artists, and they sure as hell fleece the public. The tape vs. CD issue that many people like to bring up is one example.
Oh, and please don't drag out that tired old argument about "if you don't like it, go somewhere else." That works in a capitalistic system, not the hybrid system we have with regard to IP. I'll operate under strict capitalism if they do too. No IP laws and I'll go elsewhere if I'm not happy with what they're providing. As soon as they get special legal protections, they're out of the realm of go elsehwere if you don't like what they're selling.
So, in conclusion, I don't think that anyone thinks that napster has the moral highground. I think that it's just a matter of everyone realizing that the RIAA doesn't really have it either.
They laughed at Einstein. They laughed at the Wright Brothers. But they also laughed at Bozo the Clown. -- C. Sagan
I have a really simple question - how is Napster making money (off the artists involved, or period)?
This isn't facetious - I've never used Napster, and I don't understand their business model. Do they sell banner ad space in their client program? I saw that Lars also said that Napster was making money off Metallica, but he seems to be a moron when it comes to the internet, so I didn't really take him seriously.
I had just assumed this is one of those IPO scams where a bunch of sheep buy the overinflated stock at the IPO even though the company can't possibly turn a profit - ever.
4) Consider researching/finding a radio plugin card that works under your OS of choice. Set it up such that a simple tap of a key starts/stops recording. With a decent radio station (that doesn't voice over the start and finish of songs) this could be an excellent source of free music for distribution via CD or server.
,35079,00.html
.. stopping this abuse is up to us individuals.. currently i don't rip (no time) but when i start, i'll definately pay lars (it's the ethical thing to do.)
moderate above UP! Listen, it won't be long before $50 buys a credit card sized drive holds 4 *years* of *.mp3 recordings.. Gnapster and freenet plus exploding bandwidth will make a milennia of *.mp3 available for sharing.. deal with it!
http://www.techweb.com/wire/stor y/TWB19990824S0011
http://wired.com/news/print/0,1294
anyway, i'm dying to record direct from radio.. does anyone know of a TiVO like device for grabbing broadcast radio signals and converting 'em to *.mp3?
(btw - yes, artists are getting royally screwed between corporations and "pirates".. it is a very bad thing
ridicule 'tallica
Metallica have always encouraged piracy of their live albums and concerts. They just don't want you sharing studio productions.
Will I retire or break 10K?
A - there is nothing artificial about wanting to profit from your work. You work, you expect to get paid. If your company told you that they took a loss last month and couldn't pay you anymore, would you stand for it? no.
Likewise, in your argument about scientific professors, i think that issue is moot, in that the scientific community, at least the academic one, is much less "for profit" than anything else. They share information freely because they can garner insights from one another and reformulate their opinions as a result. In the same breath though, it is them (the scientists) that have decided to distribute their work freely to one another. They didn't do their work with the expectation of getting paid for it, get paid for it for a while, and then get turned around and told that they should have to expectation of getting paid, because if they really liked to research they'ed donate their time and do it for free.
B & C - The attack on Napster in no way prevent you from going out and starting your own band. You can even hear a lick you like and rework it some to create your own song... This isn't about trying to squelch creativity, it's about making sure the people that have dedicated themselves to this "creativity" get paid for their efforts. If their efforts aren't rewarded, that could stand to quell them from creating further, and could evn prevent other people from following their paths.
The IP existed to encourage people to innovate doesn't really hold much sway in this argument. I don't think anyone is trying to patent recordings or anything. I just don't think that artists are trying to protect their work as inventions but rather as products. it's a world of difference... a patent protects a process, no one's trying to patent the concept of music. A copyright protects a finished piece of work. They're just saying that the recordings are owned by the artists and it's up to them to decide how they want to distribute it and how they want to get paid for it... Since there isn't really any system in place for them to get paid by selling their tracks on the internet, they're still huddled with the record companies so as to be sure they receive something from their efforts. Which brings us to Napster and what it's doing is tightening the bond with the artists and labels, since now the labels can say "see, at least we pay you a little bit anyhow".
As far as the bad music goes... go look for better music, then... don't complain that about the fact that you're dumb enough to buy the shitty CD's that the promote. It's kind of like seatbelt laws... Think for yourself and explore the music world... Contrary to posters sentiments around here, it is not infact illegal to listen to the radio, tape what you hear on the radio, go to a friends house and hear a cd, go to a club and see a band, or anything else... It's not a tired argument. It's the truth.
The problem is that Napster only has one use, transfering MP3 files. ... A more general system such as gnutella does not have these kind of problems.
But with the Wrapster archiver, an MP3 file need not contain an MPEG audio layer 3 stream to be sent using the Napster software. Wrapster is your typical tar(1)-like archiver, but it makes archives (*.wrapster.mp3) that Napster can shoot over the Internet. To put it another way: <whore>you can use Wrapster and Napster to distribute the latest version of a certain OS kernel so that the official servers don't get slashdotted when 2.4 is released</whore>, especially if you napigate to an opennap server.
Will I retire or break 10K?
- A.P.
--
"One World, one Web, one Program" - Microsoft promotional ad
"Remember when the U.S. had a drug problem, and then we declared a War On Drugs, and now you can't buy drugs anymore?"
All of this is IMHO: I have witnessed the battle between those who claim to protect individual freedoms and those who claim to champion the rights of patent and copyright holders as it has unfolded over the last twenty-some years and more, and I have come to two conclusions: 1. As in most battles, more effort is being expended in arguing the causes of the problem than in finding possible solutions, and 2. A large number of these people are full of grade-A male bovine digestive byproduct, and aren't truly interested in the moral issues they claim to support, but rather in what their side gets for them regardless of the expense, in rights or dollars, to others. I'm about to point a few fingers. I want everyone to realize up front that I do not do this to suggest that these people are "evil" or the culprits in all that has gone wrong, but only to clarify our current situation so that we may move forward to a possible solution that will make the most people happy and that will be honorable. As I see it, we have five kinds of people, some of which overlap, involved in this debate: 1. The Champions of Freedom - these are the very few people whom actually argue against the new laws and the corporate lawyers on the basis that individual freedoms are being violated. They believe, and rightly so, that once a cycle of limiting the rights of individuals for the sake of "public convenience" is begun, that it will be very difficult to stop. For the most part, I believe that we should be proud of these people. The exception to this pride is when they are forced through circumstances to make their stand with: 2. The Hackers, Code-crackers, Slackers - this is the VAST majority of people who are "fighting for their individual liberties". The "liberties" they fight for, in truth, is the ability to continue their quest to rob people of property that is at least lawfully theirs. (More on this later.) I know, I know - the (software, music, movie, publishing, etc.) industry charges an unfair amount for goods that the public "needs", so members of that public have the right to go outside of that system to correct for this grave injustice, right? No. Think about it individually for a moment: I have made a little pot out of clay, and put some amateurish art designs that I came up with onto it. I KNOW, and you know, that the little pot probably isn't really worth more than about $10, and that's being generous. But I decide to sell it, and I decide that my selling price will be $10,000. At this point, you (the consumer) have three courses of action: you can buy the pot (boy, are YOU stupid!), you can walk away and deal with another potmaker who isn't as big an a$$hole as I am (which I may be proving by writing this post), or you can steal it, at which point you are a THIEF. In this country, I have the right to be an a$$hole, but that doesn't give you the right to leave me without a pot to pee in. ;-) 3. Joe (or Jolene) Public - this is the largest group, period. These are the people who have yet to realize they are involved with any of this. This is the most telling group, in my opinion. These are the people who steal cable, who copy video cassettes, who download MP3s but haven't become involved with it enough yet for it to be a concern for them. And they are the people who don't do any of that and haven't given much thought to the matter. If you ask most of them about what they're doing, they will tell you that they know it is a bit wrong, but they don't know where to draw the line of right and wrong in these matters anymore. So they go with what gets them what they want and try not to think about it too much, because if they do, they will become one of the other categories, and life will become a headache. 4. Senator Palpatines - these are the industry lawyers and the money grubbing executives and the vast majority of those who are "fighting to protect the rights of patent and copyright holders". These people aren't fighting for any rights other than their own right to make money and gain power, regardless of the morality involved. In many cases, these people will also be found in group 2, as long as it is related to a different industry than the one they are making money in. They don't mind at all making total suckers out of: 5. The Champions of Entrepreneurism - these are people who truly believe, and perhaps rightly so, that it is the right of the originator of a good idea to be the primary benefactor of profits from that idea. That commerce and prosperity cannot exist in a nation that allows thieves to continue unimpeded. And that artists should have the right to insure that their creations are presented in the spirit and with the qualities that they were originally intended to have. They don't necessarily like the exact way that our nations' laws are set up to protect those ideals, but they are willing to work within the system, and they will use those laws to their fullest potential in the pursuit of their cause. Now, as you may have been able to tell, I don't have much respect for types 2 or 4, and I don't think any "right-thinking" person would. But I'm not quick to try to place individual people into any of these stereotypes - as I said, they overlap. The Problem, in almost ALL of these cases, as I see it, goes back to Thomas Edison. Or maybe it was King James. Or maybe it.....well, nevermind exactly who. What both of the people I just mentioned had in common was that they both put their names on other people's work and ideas and were way ahead of their times in the field of "intellectual property". The $10,000,000 question is - Can, and should, information be OWNED? Information is difficult to control. I come up with a joke or a method for keeping bread fresh and tell it to one person, and if its any good it will soon belong to the world. And the argument, perfectly valid, of the Champions of Freedom is that this is good for society, because it encourages innovation. Maybe someone will come up with a better version of my joke that is funnier. On the other hand, I think most people will agree that an artist, whether practicing fine arts or being scientifically creative, should have the right to preserve the integrity of his work. And before you argue against this to serve your own purposes, think about how you felt about what Vanilla Ice did to "Under Pressure" by Queen, and you'll know I'm right. And this right would have to include controlling presentation, which they can't do if unauthorized people are presenting it (i.e. poor quality MP3s). Also, an artist has to eat and has the right to pursue happiness, and so has the right to be compensated for his or her work. What is the solution? Oh, you thought I was going to tell you? I wish I knew. I wrote this post to hopefully clarify the problem to get people thinking ABOUT the overall solution, rather than simply worrying about the morality of downloading any given MP3. (But I'd be willing to wager the answer will be best expressed in a sentence with 42 letters in it. Maybe we should pose THIS to Douglas Adams. ;-) Surak Prime out. My .sig is taken from "Spock's World" by Diane Duane, without permission, but also without intent to infringe. Think about it.
:::The Spear in the heart of the Other is the Spear in the heart of You; You are He - Surak of Vulcan:::
And in other news, following their glowing success in their suits against MP3 dot Com and Napstar dot Com RIAA has decided to "let it ride!", filling suits against Washington University, Necmer Soft, Inc.,The Apache Group, Netscape, and Microsoft. Only Microsoft was available for comment saying, "... this is no different than STAC...", making reference to the buyout and dissolution of STAC by Microsoft a number of years ago.
Gez. Fuck it! Let's sue the whole damned country. (*whisper*) Oh, Metallica is already doing that...
[And people say Communism and Socialism are Evil (tm).]
Sometimes I wonder. It seems as though the US is ruled by corporations now. Otherwise how could such an injustice as this occur?
Napster was never intended for illegal acts. They do absolutely everything they can legally and fairly do to prevent piracy; granted this isn't much (a copyright warning in the splash screen is all you can do), but they do everything they can. Simply because something can be used illegally is not grounds to criminalize it. Take acetylene torches. I can use such a torch to help me build or service machinery; this is totally legal. I can also use it to kill someone or burn a building to the ground; this is clearly illegal. Furthermore, this tool lets me carry out these illegal acts in a far more efficient manner then, say, a match or a cigarette lighter. The manufacturers of the torch do everything they can reasonably do to prevent illegal use (which, again, amounts to essentially just a warning label). But they can't control their users. Does this mean acetylene torches should be made illegal? Of course not. Why, then, with Napster, a program made with purely benign intentions even if it does have the potential for abuse?
Now, there is one critical flaw with Napster: it only shares MP3's. If it shared all types of files, RIAA's ludicrous argument would have been much weaker. But it is still nothing but a conduit. Rather like the Internet. I can still get MP3's in myriad other ways; should the Net be made illegal because of this? Again, no. That would be stupid. And so is this.
While what RIAA members do is certainly unfair and despicable, is it really against the law?
What you'll need to show is that RIAA members keep non-members from being able to enter the market, sort of the way that Microsoft suppressed competing operating systems and applications. Microsoft could have charged $5000 per copy of Windows (or whatever the market would bear) but that wouldn't have necessarily gotten them in trouble if they hadn't been ruled a monopoly.
And I have to say that I think RIAA is definately not a monopoly, especially these days when musicians really do have a viable alternative to using the RIAA member record companies: The Internet, and also a ton of indy labels.
If you really want to get CD prices down, lobby the musicians. Convince them that they will make more money if they don't sign their souls over to the industry. Of course, you'll also have to put your money ehere your mouth is, when the time comes.
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As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
Perhaps this has already been expressed by another member but thought I would throw my two cents in.
1. Having an MP3 of a song from a CD you own is not illegal.
2. Downloading an MP3 of a song from a CD you own is not illegal.
It is just that simple. End of story. Anyone using napster to 'steal' the music they download by not having or buying the CD if they keep the music is in the wrong but that is on each individual and Napster should not give even an inch because they have not broken ANY laws.
I wonder how the judge was bribed to rule against napster so quickly?? It just seems that there should be alot more taken into consideration before making a ruling like that. Assuming that the story is true.
--- Hey!? Where did freedom go?
RIAA insists that you have merely purchased a license to listen to the songs
You must be thinking of computer software. I hear this over and over again and it's becoming something of a pet peeve. There is no licensing involved and no license law when you buy a music CD! None!
(btw - yes, artists are getting royally screwed between corporations and "pirates".. it is a very bad thing .. stopping this abuse is up to us individuals.. currently i don't rip (no time) but when i start, i'll definately pay lars (it's the ethical thing to do.)
I pay musicians with the time, effort, and bandwidth it takes to promote their music, just like the record companies. But I don't and won't SELL it. That's for them to do. If we can establish the idea that it is o.k. to share, but that selling is the stealing, we'll be fine. By creating a social contract where you agree to only buy from the copyright holder we can stop any real pirates dead, and let those of us that want to share be happy. That's what being GNUML is all about.
oh, and about Paylars. I think it's a joke. Regardless, I've already learned that whining children should NOT get what they want as a general rule. Judge me accordingly.
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I disagree. It does set a dangerous precedent. If I type Metallica into the Alta Vista "images" search engine, it will provide me with a plethora of copyrighted images. If I download the image, and make t-shirts, should Alta Vista be shut down? You say that the vast majority of files that are shared by Napster are copyrigted. I would contend that with the commercialization of the internet, almost everything any search engine finds is also copyright protected. Do we determine the legality of a search by the percentage of copyright protected files it finds? What is the percentage? What about the artists that LIKE Napster? I take offense when an industry that has dragged its feet protecting its own product wants to determine how file formats are found rather than going after the actual infringers. If the New York Times can't sue Yahoo! for an article I search, steal and sell as my own, then how in the world can the recording industry sue Napster? I would love to know what the major search engine companies think about this lawsuit.
If you get beyond the actual technologies involved for a second, and look at it from a product driven point of view...
Napster is popular.
Napster is a company.
Napster's popularity could transalte into $$$ for napster.
Napster drives it's popularity from it's ability to assist users in sharing mp3.
Napster knows damn well that it is popular because it helps people find pirated music. Without the pirated music, napster would be nothing. YOU KNOW THIS IS TRUE.
Now, I don't debate that mp3 is legal, that there is lots of good, freely available legal music as well.. just that Napster drives it's popularity from helping people do something illegal.
If FTP was just like naspter, why isn't it being sued? Hey.. why isn't gnutella being sued? Simple. Napster is a company that is profiting from piracy. Period.
oh, and about Paylars. I think it's a joke.
you mean "the artist" known as Lars? 8).. you're right, paylars is a baaaad example.. but there's somehow we gotta renegotiate to find compromise between the two sides currently screwing artists..
The problem with pay direct to "copyright owners" is the wealth of interminable copyrights owned by minnie mouse and all who hold and share her..
If you're above accepting credit for promoting art you love, then a solution may be harder to find, IMO..
DMCA
We're not talking about a general purpose search engine that just accidentally happens to stumble across mp3's, or other copyrighted stuff. For one, most well behaved search engines acknowledge robots.txt, and keep away from areas that a site owner doesn't want them in. For two, imagine a search engine that only searched for warez versions of programs under the guise that "you have a right to use this program wherever you go" but with absolutely no verification scheme... That's software piracy. If it's okay, how come no mainstream company has dared let people "back up" their Oracle 8, Netscape Application Server, Windows 2000, Windows 95, etc, CD's so that people can restore their software configurations from where ever they might happen to be? Because they know it's wrong and they'll get sued and even possibly wind up in jail. Why is it different if it's music?
If Napster was providing a service like "Beam-It" it could at least try to incorporate some form of digital signature scheme, where people would first have to "prove" that they have the right to listen to a certain CD. Or maybe Napster could just take a deep breath, step forward and say "yes, music is being traded freely thanks to our servers. You can shut us down, if you'd like, but the trading will probably continute. Or maybe we can try to figure out a way to do this that pays everone involved." Doesn't sound to me like Napster's trying to do any of that... They're just wiggling they tounge at the recording industry.
I take offense when an industry that has dragged its feet protecting its own product wants to determine how file formats are found rather than going after the actual infringers.
No one around here seems to be able to figure out who should be responsible for Napster and it's users actions. When someone sues napster, people flip and say it should be the users responsibility. When it's rumored that someones going after the users, everyone cries about how a band is suing their fans. Besides that, it's also been often stated that since it's so easy to make a new identiy on napster, going after the users would be pointless, since there are so many sources of throwaway email addresses. That means in my eyes that Napster should be held accountable since they've created the servers and the software people are using in such a fashion that it encourages piracy and makes it difficult to go after the actual infringers...
As far as the artists that like napster goes... Since the amount of artists that like napster is without doubt much smaller than the ones that don't like it, why don't they make it an "opt in" sort of deal? Artists could even upload the songs at the bitrates that they wanted to be made avaiable to their fans. Napster could even store the music on their servers, or let users continue to shoulder the burden for them of having enough bandwidth to distrute the MP3's...
But if an artist doesn't mind their music being distributed for free on the internet, why wouldn't they just set up their own web site which did that... Complete with links to places for people to buy their CD's, t-shirts, and get news about them... Some of them do, actually... Which again, alleviates any need for Napster...
There are so many faults as to the way that Napster operates, it's honestly getting suprising that so many people here continue to jump to their defense.
And I have to say that I think RIAA is definately not amonopoly, especially these days when musicians really do have a viablealternative to using the RIAA member record companies: The Internet, and also a ton of indy labels.
Don't forget about distribution!
There are a handful of major record labels and a handful of distrbutors and they pretty much work in exclusive partnerships. Often the label owns the distributor oughtright. I've never heard of an indie label working with a major distributor. Major retail outlets are rarely willing to deal with anyone but the major distributors (caroline, is the only 'indie' distributor of significant size).
So, you can't access the retailers w/out the distributor and you can't access the distributor without the record company. If it were one record company and one distributor it would clearly be a case of abuse of monopoly power. But because it is a small group of comanies, algededly acting in collusion, it's a bit harder to procecute.
The movies are kinda similar, indie films often collect dust after filming and editing because they can't get a distribution deal.
You have choices, but not if you want to sell a million albums. Granted, you'd make more money selling in the ten's/hundred's of thousands with a small label, but you can't do millions w/o paying the major labels their 95-98%. I hope that as more people work outside of the established system, equitable, open channels will develop. If the indie market gets strong enough it would limit the ablility of the MPAA to play format-switch. I'd hate spending my old age stuck w/ nothing but the britney-bot-5000 because I can't get a player for any of my lp's, cd's or mp3's.
- bridgette
A subtle but important point. Although the article suggested that:
The US District Court in San Fransico has ruled that Napster is not just a "mere conduit" for files, but that it is actually liable for material transfered by the program.
the truth is rather more interesting. The actual opinion makes clear that the ruling made no determination of liability at all.
This opinion merely denied the defendant's motion for Summary Judgment -- it granted no decision in favor of the plaintiffs, who must still prove up and prevail in their case of infringement. Summary Judgment is a means by which a party can short-cut a trial on an issue for which there is no genuine question of material fact. By deciding that the question of liability must go to trial (over the DMCA issue), the judge most certainly did not make a finding of liability. In fact, S.J. motions are rarely granted.
More important, it is significant to note that the issue here was not liability itself, but rather whether the defendant fell under a safe harbor (get out of jail free card) set forth in a bill intended to protect ISPs. The fact that the safe harbor doesn't apply still means that the plaintiff must prove his case, get past the common law "Netcom" standard, and then the Supreme Court "Sony Betamax" case.
Without having reviewed the opinion carefully, this much is certain -- the opinion did not make any finding that the defendant's are liable. Only that the game remains afoot.
i was just using them as an example. some people like 'em.
as far as #1 being theft, i'm not so sure. i know the law is against the idea, but radios and libraries give away music all the time, and that is legal.
in my opinion, and i know it's probably against the law, as long as i don't profit from giving away music, even someone else's, or claim the product to be my own, it's legal.
that is my moral position. just as someone drives down the street blasting music out of their convertible, just as radio stations blast music to millions of listeners (and get charged a small fee while earning their revenue via advertising), just as libraries loan out CDs for no cost, i firmly have the belief i can distribute copywrited material from my personal server for other's personal use -- as long as there is no profit motive.
Websites serve copywrited material all the time. it travels through all kinds of devices and eventually resides on my machine. i do not claim to "own" it, by my machine may cache it (think squid) for others.
when my neihbors have a block party, they roll out the Altecs and crank up the Yamaha. i've never had to pay for that music.
well, in this case, i think a rousing chorus of "F*CK THE MAN" is in order. these are our machines, our servers, and bandwidth we paid for. as long as i don't claim to "own" the copyright, or profit from the distribution, or sell the CDs, i honestly thing the man can go f*ck himself.
why does a library, someone driving a car down the street, or (to a certain extent) a radio station have more "rights" than an computer-owning individual? they don't, they shouldn't and the b*llshit stops now.
i have already stopped buying new CDs of any kind. i plan on *carefully* buying CDs again at some point in the future, when i can verify that the RIAA does not have their hooks in it.
one reason i'm so hot on all this (and this is off-topic, i know) is the ongoing debate on legalizing drugs, particularly marijuana. seriously, i am convinced that there is a lot of money in enforcing these laws against non-violent/non-criminal users -- and to deny a mentally (or terminally) ill person marijuana is absolutely ludicrous. this is just another form of the same class of stupidity. it's control of your personal life for a profit motive.
the horrendous cost of all the police, lawyers, prisons, lost productivity due to the criminalization of drugs, not to mention the black market violence that it supports -- really, i'm starting to think orgs like "netPD" could make the net go the same way.
this has to stop! somehow, people need to consider how to stop this from steamrolling into (what could be) another drug war. some judge, or maybe the ACLU, has to step in soon and demand that personal, not-for-profit intermachine communication is STRICTLY PROTECTED FREE SPEECH under the constitution. that means NO EAVESDROPPING without a court order, and NO CRIME unless there is money changing hands or a false claim of ownership.
phew!
Treatment, not tyranny. End the drug war and free our American POWs.
See my user info for links.
If you review the opinion, you will find that Judge Patel, in order to twist the safe harbor statute out of bounds, was forced to arrive at the following conclusion:
In other words, Judge P found that the safe harbor didn't apply only because Napster did not itself reproduce, distribute or make derivative works! In other words, Napster did not ITSELF DIRECTLY infringe any copyrights, although it very likely provided the means by which others may do so. (the ones whose systems do provide connections).
Unfortunately for the plaintiffs in this case, however, the Supreme Court has already determined the conditions under which a party may be derivatively liable for a direct infirngement by another. In Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984), the Supreme Court clearly stated that there can be no infringement because
In other words, since Napster is "merely [] capable of substantial noninfringing uses," there cannot be indirect infringement. This, taken with Judge Patel's finding that there was no direct infringement (or she must revisit her determination that the safe harbor did not apply), leads to an ugly Hobson's choice for the Plaintiff's. There is no question that they must lose, just an ambiguity as to how they must lose.
That being said, I am hardly a scholar of the facts of this case, and these conclusions may not be applicable at the end of the day. Nothing I have written here should be taken as legal advice. Still, I think there is quite a glimmer of light in the particular findings Judge Patel issued in her Opinion.
Radio stations can transmit music because they pay for each and every song they transmit . License fees go to ASCAP and BMI, who in turn apportion some quantity of them to the record labels and, presumably, the artists. They do this in order to get people to listen to them, so that companies will be inclined to pay them money to advertise. This advertising money offsets the cost of licensing the songs and, if they're lucky, gives them a profit.
There's no licensing process involved for Napster. There's nobody to pay a license fee, nor is there any easy way to keep track of what songs get transmitted to whom without it being an invasion of privacy.
On the other hand, My MP3.com could very well make license arrangements (and according to a news blurb I saw recently, has licensed with BMI) to continue using their music in their CD streaming program.
Anyway...it all comes down to this. If you want to download MP3s via Napster & Gnutella, go for it. Heck, if you want to make them available, do that too. But bear in mind that, even though it's unlikely they'll go after you for breaking the law, they would be perfectly within their rights if they wanted to do so...and whether you think the law is right or not, you'd still have to answer to it.
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Editor Emeritus and Senior Writer, TeleRead.org
And is the status quo all that bad? What would those artists do with all that extra money? Look what they do with the cut they're getting now. Most of them go backrupt within a couple of years of their last big hit, blowing it all on God knows what, or killing themselves. Most of those artists should be on prozac anyway. I think the RIAA should set up a mandatory proazac clause in their standard contract. Yeah...
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
No one seems to be mention a few basic common sense observations of this whole thing.
1) The latest "New World Order" (NWO was originally coined 50 plus years ago) is collapsing at a geometric rate, at least in terms of control over information and "intellectual property".
2) The legal system (like the political system) is pathalogically controlled by big business.
3) Control over information when it has already passed into the realm of electrons is rather futile. "Hey Bob, here's a new protocol that will solve this problem." "Frank, let's see if we can tunnel this in that." "Hey Jim, fuck them, we'll reinvent the system from scratch." BUT, this doesn't mean the existing empire won't execute a few heretics before Rome burns.
4) Until, "Soviet-style" tactics are capable of being enforced everywhere simultaneously (which ofcourse, they never will), human beings are going to generally do what they feel is morally and ethically sanctioned. (Pass the pliers, I think I've got a tooth-ache)
5) Most people feel that music is more "art" than "commodity" and therefore sharing art with ones fellow human beings is morally acceptable, even more so when it is easily accomplished, technically speaking. (Rip the Mona Lisa in two and send me a piece when you get a chance) Some people even believe that software is more "art" than "commodity", god forbid!
6) Since when does Meta11ica deserve this much free publicity, they've been crap since I was in highschool (a long time ago). Ratbastard$. Hypocrite$.
7) Given that the powerful corporations that have money and influence will continue to try to put a plug in all the holes in this stuck pig, we better brace ourselves for more and more 1984-style attempts at conforming the behaviour of the average technologically adept human being into a moral and ethical mold set out by organizations like the RI@@ and MP@@.
Their viewpoints as echoed by the emerging legal arguments seem to me to be more like:
You'd all be buying this crappy music if we could outlaw Radio, Internet, Tapes, CDRWs, cover bands and humming, you know you would. So stop stealing from us. You're killing pre-copulation babies!8) Prepare for the Int3l white paper(s) to come true and for attempts at $Corporate$America$-sanctioned IP rights-controlling CPU and hardware to become the standard (adopted through the backdoor ofcourse).
9) I guess the average commercial software houses out there (read N@pster) haven't figured out what the Internet is all about. Single point of failures are exactly that.
And the most important point of all. All those people out there who are up in arms about this MP3/D3CSS/N@pster issue but who are not contributing actively to the Free Software Movement are helping seal their own fates. We all need to fight together to keep software and hardware doing what we want it to do, whether or not $Corporate$America$ feels that it is "right".
Those bastards developing are probably the same corporate bastard$ that are going to restrict your freedoms first, not last.
And you can never be quite sure if those Open$ource friends of yours might be interested in selling out provided the technological solution to our (their) own demise is elegance, efficient and well coded.
Okay, so maybe that was more than a few simple observations. You get what you pay for...
PS. It's much more effective if the sheep have internalized the fox's belief system and feel that the external coercion is in fact their own belief system. In the best case, they'll slaughter themselves. In the worst case, they'll probably just bitch about it on Slashdot.
-ILM, Like The Rest
Anti-copright? Alright. Support free music? Okay. Explain how you're doing people a *favor* by stealing their work against their wishes? Hah.
Read some of my comments, or the upcoming Rebuttal part duex for answers to some of these questions.
?No kidding - especially when they're all crying for free beer.
No kidding, Who do you mean by "they"?
If a band becomes popular from a purely free music background, that may actually cause large waves.
Which brings us to my next point (and what I was doing last night)
BIG HOLLOW endorses Free Music! Surprising nobody.
hehe
Or if you've ever heard of a band called Phish, as an example. There are a number of others, but you won't hear about them on CNN or the Radio...yet...
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