An MP3 Update

There's been a number of things happening of late in the MP3 world - first off, MP3.com has complied with the Federal Court ruling by silencing (their term) major label albums. They're still including classical and indie tracks, but not much major label stuff. Also, ZD is carrying a story about Dr. Dre gearing up to ask Napster to ban users a la Metallica. I also got an e-mail from folks at SpeakOut who are trying to help out people hit by the Metallica/Napster deal - so, if you got banned check it out.

Comments

the curveball

[geekpress]

According to an article in Salon the Metallica fans kicked off of Napster have some interesting recourse with the DMCA.

The article says:

"Under the terms of the Digital Millennium Copyright Act, if an Internet service provider receives a complaint about a user who is allegedly violating a copyright, the ISP is supposed to immediately remove that user from its service. But if that user thinks he has been misidentified and submits a legal counternotification, then the copyright holder has 10 days to decide whether to take legal action. If the copyright holder doesn't initiate legal action against the user, the ISP must reinstate the user.

"Now, Napster, identifying with the ISPs, is using this law to force Metallica to take up its piracy concerns with individual Napster users. On a page on its Web site, Napster explains this. "The Napster software will direct all users barred as a result of Metallica's allegations to an infringement notification page. That page explains the notice that Metallica has given us, explains who Metallica has stated to us it intends to block, and gives the user an opportunity to submit a counter notification if the user has been misidentified. If the user has been misidentified, and requests to be reinstated by submitting a counter notification under penalty of perjury, then, unless Metallica chooses to pursue legal action against that user within 10 working days of being notified of that user's counter notification, the user is entitled to be reinstated."

***

So, what would happen if all those Metallica fans who own all the CDs for the MP3's they were trading stepped forward and gave counternotification?

Would Metallica have a legal leg to stand on?

-- Diana Hsieh

Re:the curveball

[ToLu the Happy Furby]

So, what would happen if all those Metallica fans who own all the CDs for the MP3's they were trading stepped forward and gave counternotification?

This seems to be a common misconception about what Metallica did. They didn't ask for all the people who downloaded their music to be banned, but rather for all the people who were offering their music for download to be banned. In most cases, it's the same thing, since by default Napster shares the directory where it saves your downloads, but the two are very different in principle.

Even if you own the CD, you're not the copyright holder; under current copyright law, you're still infringing by making it available on Napster. The reason to make a counterclaim is that Metallica did not listen to the songs all 300,000-something people were sharing; rather, all the vaunted NetPD hackers did was write a bot (in contradiction with Napster's TOS, by the way) which searched for "Metallica" every couple of minutes, and left it connected to all the Napster servers for a weekend. Thus, anyone sharing an mp3 with the word "Metallica" in it got banned.

Now, I don't have to tell you that a lot of those mp3s weren't copyright infringing. For one thing, they would include plenty of concert bootlegs--which Metallica claims to encourage, by the way; whether they're still the copyright holders is a more difficult question. More obviously non-infringing would be things like "My band covering Master of Puppets by Metallica.mp3", or "Why Metallica sucks donkey balls--an oral essay spoken into my computer's 30-cent microphone.mp3" From what I've heard there may be many users on the list who were banned for providing exactly such content. Furthermore, Metallica compiled this list a couple weeks after they announced their suit; it's therefore quite likely that a bunch of people renamed files so as to look like Metallica files and shared them just for this reason.

For what reason you may ask? Well, in order to file a complaint under the DMCA to have something removed from a hosted server for copyright violations, you have to assert under penalty of perjury that it actually violates your copyright. In other words, if Metallica got you banned without first checking if the songs you shared were actually ones they had the copyright to, they are guilty of perjury. And from all indications, they did exactly that. Whether DMCA allows them to be fined for that, I dunno. (I'm assuming they won't get any jail time, although even assuming 99% of the files on Napster with Metallica in the file name are illegal, that leaves 3171 counts of perjury!) It sure as hell ought to, though.

On a final note, it'd be pretty awesome if everyone on the list filed a counterclaim, forcing Metallica to listen to all 317,000 of those songs. Of course, I happen to know that won't occur, since I decided to switch to Napigator instead. ;-)

Re:Text of email sent to members

[DrEldarion]

We will continue our efforts to restore your music as soon as possible

I *love* the way they phrased that. Restore your music. The RIAA needs to realize this... It's *OUR* music, let us listen to it the way we want, damnit.

-- Dr. Eldarion --
It's not what it is, it's something else.

Seattle concert

[adpowers]

Both Metallica and Dr. Dre are coming to do a concert in Seattle. They will appear in the same concert celebrating the opening of the Experience Music Project. Sounds like a good opertunity to say what I think of there little napster stunt. Muhahahahahahaha. First, though, I must get my anti-RIAA stickers from thinkgeek.

MP3.com over-silencing itself?

[ian stevens]

I went into my.mp3.com today and noticed that *all* of my CDs have been silenced while only a few have a "locked" icon next to them. Playing any track gives me a voice recording saying the track has been silenced, even though many of my CDs are not from nor distributed by major labels.

No doubt MP3.com just went and silenced every beamed CD to cover their asses. If you have some CDs on your account which you *know for sure* are not in any way from major labels then you might want to e-mail them to give attention to the error.

ian.

WTF??!?!

[zonker]

I am not a fan of metallica or dr. dre, I have never searched for them, or downloaded their music. I do however use Napster, and I have a cable modem. I have found that I am banned from the Napster network. Well, my IP has been banned. My roommate however has looked up Metallica shit. So now, he has screwed me over because we share the same IP. So what am I supposed to do now? I listen to a lot of obscure music that is rather hard to find. I have found that their are a lot of other users that have similar interests. Metallica isn't it (so fuck off Lars!). Now what am I supposed to do?

Where the hell is the EFF when you need them?

/ k.d / earth trickle / Monkeys vs. Robots Films /

The grim, dark history of MP3

[lbrlove]

Rome fell, not because of barbarian hoards, but because of the MP3s these uncivilized men listened to...

When the Titanic went down, the last thing heard was the bubbly drowning of the captain's MP3s playing...

When Hitler was in art school in the 1920's, he heard music in MP3 format, and the rest is history...

Based on everything you read nowadays, I have to believe that the MP3 technology is the proverbial anti-christ, and all because it keeps the members of Metallica from buying more houses. Why did the RIAA not resist the incursion of CD-Rs? These have had the potential for years of costing them huge money. Why do they not resist tape players having a "record" button? That is the easiest way to reproduce music.

I think the whole MP3 thing just shows how afraid people are of computer technology. Because it is on a computer, it must be a more insidious evil. I agree that it is easier to trade files on Napster than to trade Grateful Dead tapes by hand, but the human networks will never really threaten the bands in the way true pirates do.

Those people who mass-produce CDs in rickety Singapore warehouses are the people who really poach from the music industry, and they sell the product, creating a zero-sum loss of revenues for the recording industry. Those people who trade are really just in the promotion business, and although their acts are illegal, they are not earth-shattering to the avaricious companies that sell recordings. I would wager that by putting more music in the hands of more people, they are unknowingly and pragmatically supporting the industry that hates them.

Am I trying to make excuses for lawbreakers? No, not really, but sometimes the economic reality is in no way representative of the motivations. Capitalism is theoretically based on the idea that people are self-motivated, and American capitalism relies on people being downright hedonistic. Get a clue and ride the wave, RIAA!

-L

Napster using DMCA to evade Metallica

[ardran]

This article at Salon summarizing this message from Napster -- Napster is using DMCA as a defense! Users who were fingered by Metallica are allowed under DMCA (assuming, that is, you count napster as an ISP) to submit a counternotification is they think they were incorrectly identified as copyright infringers. Unless Metallica pursues legal action against those individuals within ten days of the receipt of the counternotification, Napster must reinstate them!

Metallicster

[mischief]

A colleague pointed me to this article on The Register - looks like there's now a napster clone specifically for finding Metallica music! Check it out: http://metallicster.freeservers.com/.

--

Anyone else notice...

[PDHoss]

that the two most noteworthy names going after Napster really had their heyday quite some time ago? Metallica: it's been a pretty steady slide since the black album. Dr. Dre: Much love for The Chronic circa 1992, but lately, he's been pretty bland.

Just a thought... probably redundant.

PDHoss
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Record Companies Settle Antitrust Suit

[Col. Klink (retired)]

According to today's NY Times Biggest Music Companies Settle Antitrust Case on CD Price-Fixing.