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Boies: Music Industry Could Lose Copyright
Nightspore writes: "David Boies, the lawyer recently seen cleaning Microsoft's clock for the DOJ is going to bat for Napster, and he is bringing a curious bit of law with him. It seems that if one uses enforcement of a copyright in an anti-competitive fashion -- which Napster says it has documents proving members of the RIAA cartel have done -- you lose your ability to legally enforce that copyright . Oops! More here." You can read the actual brief in pdf format as well. Boies lays out all his arguments on page three...
On p. 23 of the brief, lines 14-15, it says that showing that the RIAA was bad with their copyrights is
It sounds like nothing actually happens to the copyright, but the RIAA would have no right to enforce it until they made nice again.
Greg
If the letters are from RIAA personnel, they're worthless. The RIAA doesn't hold any music copyrights.
Each recording label would have to stand on its own, and the collective 'letters' couldn't be used against all of them. Only the letters from agents of that particular label. I don't think this'll end up holding up. This is why associations like the RIAA and MPAA exist.
Kevin Fox
Kevin Fox
Sony v. Connectix and Nintendo v. Galoob are two cases where the especially weak sixth point is substantiated. In order to issue an injuction, the Plaintiff (RIAA) must show that they are being irreparably injured. Nintendo v. Galoob in particular puts more of a burden on the Plaintiff to receive an injuction.
Further adding weight to Napster's side, the last point especially, is the next paragraph. They refer to testimony by the RIAA's own expert witnesses that sales have increased since Napster's inception. Sound damning? It only dives weight to the last point only. I find your comment about the sixth point being weak with so much case history backing it up. Also, maybe you should check a law textbook: you might need to refresh your memory with the definition of an injunction.
For more info on point no. three, see pages 9-17. Basically, if there is only one possible legitimate use for a product, then it does not infringe on copyright law. This includes products which are advertised as having copyright circumvention capabilities.
The fifth point seems the weakest, prima facie. However, an understanding of the actual claim made by Napster, and not just the summary, would possibly illuminate you. They claim that the directory of MP3s is what is covered by the first amendment. See pages 29-29.
Note to Self: do not emulate TheGreek. Write original content in Slashdot posts. Read the actual documents before commenting on them.
PS: You wrote 492 charachters. The text you coppied verbatim came out at 1171 charachters. That's about 42% your content. I try to shoot for more like 97%+ original content.
Yes, I'm still a junky. Are you still a bitch?
It seems that while the third, fifth, and sixth points are pretty weak (the fifth and sixth ones especially), the first, second, and fourth (two of which mention legal precedents) are especially damning.
This is one of the few legal briefs that I have read that have actually made me smile and chuckle with delight. Nice work, Boies. :)
This spurs me to a question regarding a post I made awhile back regarding copyright and Universal Records which contacted me and wanted me to remove an auction in which one of my users were apparently selling bootlegged material of GodSmack.
The question is, where would my responsibility fall as this legal precedent stands now? Where would it fall after it is upheld or denied? Furthermore, what responsibility befalls me (and others in my position) with a mix of the DMCA binding and this law? They seem to lend to contradiction of one another.
Any ideas would be welcomed. Thanks.
---
seumas.com
The brief makes it clear that non-commercial copying of music for friends, even if it might prevent a purchase by that friend, is explicitly authorized by the Home Recording Act. You can make tapes and give them away; that is non-commercial and explicitly authorized.
It is NOT piracy.
--
Infuriate left and right
I was just thinking of that- the PDF talks about how 'copyrught misuse may be found based on attempts to use legal proceedings to extend a copyright improperly'...
Would this apply to:
An action that tries to impede fair use?
An attempt to enforce a provision in a shrink/click wrap license which is unenforceable? (w/o ucita) For anti-reverse engineering clauses such as with decss?
The MS Kerberos extensions specificatins file.
How far would the copyright misuse defense reach? If MegaCorp was suing me for infringement, can I show misuse on an unrelated copyright as part of my defense, of would it need to be on the specific copyright on which the suit is being filed?
More on topic,
If Napster prevails on the misuse front, do the RIAA copyrights fall into public domain? When they fix their misuse, do they revert to the copyright? What, then, of copies made during the frenzy that will certianly ensue?
Surfing the net and other cliches...
Surfing the net and other cliches...
(Who Meta-Meta-Moderates the Meta-Moderators?)
I don't have a problem parting with $12.
I don't either. The problem comes in when you listen to an alternative style of music from what they play on the radio. The radio stations here are horrible. We have 5 stations that play only teeny bopper pop. No rock, no metal, and sure as hell no techno or anything else that qualifies as good music, IMHO. Yeah, sure, I can go down to the local CD shop that carries stuff I like and buy a few CDs, but the truth is that prices are so bad I can't afford to.
It sickens me to walk past the pop Britney Spears, Nsync, etc. CDs that are $12 and then to browse through the techno section and see nothing under $25. I don't know why they're marked up so much, but it is totally unreasonable for me to pay that much for an artist I have never heard. The only way for me to find new music is to download MP3s off Napster. Do I buy all the CDs I download off Napster? No. Do I buy CDs that I wouldn't have if I hadn't heard the MP3s first? Yes. Is the RIAA getting more money from me because I download MP3s? Yes, most definitely.
What really scares me is the kids at school. Everyone who has a computer has Napster, and most of them burners. Remember, these are the kids who are flunking out of the "Computer Literacy" class that teaches what a mouse, hard drive, and floppy is. These kids don't give a damn thing about the artist getting money. Most of the kids will get the latest pop CD off Napster, burn a few copies and sell them to the kids at school for $5. The parents encourage them (!) and the kids use the money to buy more blank CDRs to make more CDs to sell, and it goes on and on.
When I point out that what they're doing is illegal, they don't believe me. They really don't believe me. They don't see anything wrong with downloading MP3s and selling someone elses work. Would Napster have become as popular as it has if the RIAA had put commercials on MTV telling kids that downloading MP3s was illegal? Maybe not.
The funny thing was when 3/4ths the kids at school got banned from Napster by Metallica or Dr. Dre. Then it was my turn to make some money and sell registry patches that got them back on =).
-Antipop
Using your argument Napster could say that since the RIAA "has no product of its own that Napster is encroaching on" there is nothing to sue for, no damages and no liability - case dismissed.
The fact is: the RIAA is acting on behalf of its members, who are record companies that claim to be loosing revenue due to Napster's facilitation of copyright infringement.
They aren't saying that the RIAA is acting anti-competitively, if you read that anywhere it is a inaccurate attempt to paraphrase the legal argument.
They are saying that certain *members* of the RIAA were acting anti-cometitivly and it seems that the US Federal Trade Commission would agree with them on that since they recently settled with 5 major record companies on charges of price fixing.
If the major record labels have used their copyrights to violate anti-trust law, then they loose the right to enforce those copyrights and so Napster can't be held libel for losses due to violation of those copyrights. If the copyright holder has no enforcement right, then any organization acting on thier behalf (RIAA) looses enforcement rights as well.
So the RIAA could continue to sue, but if this argument is accepted by the court, thier damages wouldn't incude any of the 5 major labels copyrights.
This law doesn't addresss 2 major areas:
1) anyone other that the 5 major labels (i.e. indies)
2) Anything the "Big 5" copyrighted after they settled with the FTC - assuming that they are using the CD pricefixing issue as the antitrust activity (I'd guess that one could find other examples of anti-trust violations in the major labels - but IANAL).
- bridgette
The vast majority of money that musicianss receive now is through live performances and merchandise sales. The only reason they're stuck with the RIAA is that it's hard to go on tour when no one's heard your music. If the RIAA's role in marketing music is removed, they no longer exist. Remember, even without copyright protection, the RIAA has inertia on its side. All the record companies and middlemen aren't going to disappear overnight; they'll be replaced gradually by whatever successful model emerges.
Gates' Law: Every 18 months, the speed of software halves.
Not quite. Being able to divide and name a price for a given market based on how much they are able to pay is just a sign that you can provide multiple prices for different types of users (Regular vs. Academic, for example), and shouldn't be (and isn't) illegal for just that reason, as it's good for the consumers as well. Academic pricng and volume discounts are quite good for consumers.
Microsoft, however, charged OEMs a different price based not on ability to pay, but one based on how much the other company pissed them off.
-- http://thegirlorthecar.com funny dating game for guys
Umm, it isn't "near-political", the RIAA as a whole is extremelly political. Do some digging on opensecrets.org for a certain Hilary B. Rosen which, if you didn't know, is the CEO of the RIAA. Before she got the job as CEO she was clearing almost 700k/yr. I'll bet that number is higher now. But the kicker is how much she spends of her personal money on PAC contributions. Let me give you a hint: it's more than some nerd in Redmond.
And how was the RIAA formed? How did the RIAA find out about that musicians music? How did the fans find out about them?
Answer: Word of mouth.
What's the single best technology ever invented for rapid peer-to-peer communication (word of mouth), as evidenced by the hundreds of e-mails with the letters FW: or FWD: in the subject line?
I rest my case, your honor.
DISC IANAL,BMGIALS
...an affirmative defense that bars the copyright holder from enforcing its copyright unless and until its misuse is cured.
Which sounds to me like there would be an infringement grace period.
Say I m infringing, and I win a suit against me on misuse.... After the misuse is cured, they can't sue me again, right?
I understand the affirmative defence concept- like pleading guilt by temporary insanity or He Needed Killin'... But if a court ruled that misuse was going on, and I'm not related to the case in which that was shown, can't I then infringe freely with the knowledge that the (C) can't be enforced?
chris
Surfing the net and other cliches...
Surfing the net and other cliches...
(Who Meta-Meta-Moderates the Meta-Moderators?)
...especially where the lawyer points out the previous case involving Betamax VCRs. Napster has many, perfectly legal uses. Uses that even involve copyrighted music. Napster should not be held responsible for the actions of its users any more than ISP's should be held responsible for theirs!
--o You're just jealous cause the voices talk to me and not to you! o--
Can you think of any software publishers who have used copyright for anti-competitive purposes? ;-)
sigs are a waste of space
Shine on, you crazy diamond.
Many will herald it as a major victory for freedom lovers everywhere if Napster is successful in its defense. But think for a moment. The music industry at present is fuelled by large amount of cash. Sure, much of it is corporate gluttony, but can you imagine what would happen to music as an industry if musical copyright went flying right out the window?
It's forseeable that one can put together decent quality musical recordings on a slim budget. But what about promotions, tours, music videos, movie soundtracks, and everything else that makes the music industry hum while sating consumer appetites? Will any appreciable portion of the music we know and love continue on without the "protection" of copyright?
What would be next? Movies? Certainly most of the major blockbusters that leave us ooohing and aaaahing would have a much more difficult time getting funded if protected distribution channels (yes, yes, for profit, no less) collapse? I want my Matrix sequels, goddammit!
I strongly doubt anyone would revoke musical copyright en masse, via. these legal chicken scratchings or otherwise. But it does throw a nice monkey wrench into things. Perhaps this will force both sides to be more reasonable with regard to their near-political stance on the issue.
-DrPsycho - Coping with reality since 1975
no no no you've got it backward.
The monkey is "piracy".
The idea behind an SP-style "chewbacca defense" is to locate something that easily appeals without a lot of thinking. Something that can be easily grasped, and that makes you happy to think about because it lets you easily look at the problems in terms of right/wrong. Take a complex, multifaceted issue, and insert one simple word: PIRACY. suddenly The DeCSS Hackers Are Wrong. The MPAA Is Right. Simple, Black and White, not a painful, important decision. It's not a difficult, painful issue with many sides, it's about Copyright Piracy, and Piracy is simple, and Piracy is something that they have seen on the news and that can be easily morally justified and that the plaintiff has repeated over and over often enough the jury can believe it's true.
Or, if you want a far, far more powerful word for your monkey: Children. Imply that Children are being "hurt" by one side or the other, and no matter how rediculous your justification for claiming this, no matter how tenuous your support for yuour side, no matter how valid the other side may be.. the other side is GONE. See Also "columbine".
Monopolistic tendancies of huge labels harming independant, little artists and enabling the labels to rape and screw over even signed artists do NOT make a good monkey. (try looking up sometime that essay by the guy who produced the Pixies [i think?] on how most apparently successful artists are actually deep, deep in debt to the record companies because of contract complications, and the whole Letter of Intent thing..) They can't be that easily grasped, they force you to actually (*gasp*) re-evaluate some of your assumptions about those bands you're hearing on the radio, and they may even force you to look at your mighty god 104.1 KRBE, Today's Modern Hits! as something that maybe doesn't, at heart, care that much about music.
Most importantly, thinking about the true nature of the music industry as a parasite on an art form requires, well, THINKING, which defeats the entire purpose of the monkey in the first place. The point of the chewbacca defence is to keep the jury from thinking; give them something nice and happy to distract them, like The MPAA Is Stopping Piracy or The Christian Right Is Protecting Children, so that they don't actually think about the issue deeply enough to realize it's something with more than one side, something in which the side with the more valid concerns may actually not be the most obvious one.. Making the jury think is counterproductive, and besides, people don't like to think.
Basically, in this case it's easier to think about the music companies' monkey than Boies' monkey. And while the music companies' monkey may be a bit more relevant, Boies' monkey is far, far more valid.
Irritable, left-wing and possibly humorous bumper stickers and t-shirts
After doing something many posters have not--READING SOME OF THE ARTICLE, I learned a new fact:
When individuals are trade music privately, and on a one-to-one basis, it (legally) is not piracy.
This makes the case much more intersting for armchair layers like myself. (It's like chess, but sometimes with teams, and opponents must do research.)
Napster obviously facilitates trading of copyrighted material. The question is, can the interaction be considered private, as it occurs with public listings? And is it considered non-profit after Napster began advertising for profit?
It could be that Napster the corporation may be found liable. But if that happens, individuals will continue to legally trade music online in private, one-to-one transactions. They may do it on _free_ FTP, (screw you allAdvantage whores,) or on a decentralized napster clone. But they will do it.
In fact, maybe "Napter guilty" won't be a bad verdict. Since it has been established that individual trading is lawfull, let us legally encourage _distributed_ information sharing, and another step of evolution in the information age.
Whoah there, Cowboy! Not so fast! You'll have to explain that one further. How is DVD region encoding anti-competitive?
Since I'm an anime nut, I see this a lot.
For DVDs that get released across multiple regions, THEY ARE NOT THE SAME. Extra footage [Battle Athletes], bonus scenes [Yougen Kaisha], running commentaries, removed credits [pretty much anything on DVD], hard subtitles I can't get rid of [Utena], lack of original language track [Disney's Mononoke] and outright edits of movies [Sailor Moon], etc., are made between different region's versions.
Yet I am officially [*] BLOCKED from buying a product from another region because that product would COMPETE with the local one.
If that's not anti-competitive, what is?
[*] Of course, I bought a hacked DVD player to get around this, but still want to see an end to region coding because it is unfair and anti-competitive. Audio CDs are universal. I see no harm resulting from import sales.
The powers that be got this language in to stop people that were actively trading music but not selling it. If you give someone a recording in expectation that they will send you a different one in return, then that is now considered commercial gain.
This may or may not affect Napster. When you download a file from someone else's computer with Napster, there is no expectation that you will return the favor and upload something back. In fact, you can't do that at all. The protocol is one-way.
Just something to think about.
Burris
Just a reality check on the scope here. Is it civil disobedience? Or just selectively ignoring the law?
I usually think of civil disobedience whenever people are willing to risk being beaten, imprisoned, burned at the stake, etc. for cherished religious and political liberties.
Now while there are really important free-speech issues involved in the case, the 'right' to sample music before purchasing doesn't really fall into the same category as what Gandhi and M.L.King were fighting for. I seriously doubt most Napster users are prepared to go to jail over this.
Corollary to Moore's Law: The IQ of new computer owners is declining.
If those 98% of all musicians out there even made a dint in the Napster traffic, then maybe Boies' would have a good argument. Otherwise, it just looks like the primary use for Napster is not as a medium for small artists to push their stuff, but rather as a way for people to acquire quality music of their choice from the big label artists for free. Too bad for the little guys, because Napster might have really made a difference.
/. over the previous months about the degree to which Napster is actually used to trade unsigned artists' recordings, it turns out that it doesn't matter one single bit. All that matters is that Napster is capable of it!
If you read the brief all the way through, you'd find that the RIAA's own survey of files shared on Napster found that only 87% had names which corresponded to RIAA signed artists. In other words, 13% of Napster traffic is clearly non-infringing--more than just "a dint", if you ask me!
But even that doesn't include cases when those 87% of files with "infringing" names are actually of live recordings, etc., which bands often expressly allow to be redistributed and whose copyrights certainly don't belong to the RIAA labels in any case. Looks like that dint is even bigger.
Furthermore, it doesn't matter if all the traffic on Napster consisted entirely of Britney Spears and N'Sync; it still doesn't infringe copyright law if the way it is used falls under fair use provisions. Examples of ways one might use download an RIAA-copyrighted song off Napster for Constitutionally protected fair use include:
1) "Previewing" a song/album by downloading the MP3 and listening to it before decided whether it's worth getting gouged $18 for the CD. According to a survey, 91% of Napster users engage in this particular form of fair use.
2) "Space-shifting," the practice of downloading a song/album one already bought in CD/tape/vinyl/8-track format so that one can listen to it on one's computer/on one's Rio/at work/etc.
But I saved the best for last:
3) "Noncommercial use"--that is, downloading any song without paying the person you got it from in either money or some quid pro quo trade. Interestingly enough, this fair use was expressly granted, for all time and with regards to all future technologies which might crop up, in the Audio Home Recording Act of a few years back. Yes, this does in fact mean that almost any conceivable use of Napster is non-infringing and completely legal. Indeed, it means that all music-sharing over the Internet is completely legal, except for ratio sites and must-click-on-banner-ad sites. (No, this fair use does not extend to warezing software, only music; however, contrary to popular belief, however, it does extend to both digital and analog music recordings). Thus your dint is now fully 100% of all Napster traffic!!
But wait: there's more. It turns out that by the standard set up by many previous cases (amongst them the Sony Betamax case) it doesn't even matter how big or small the dint is. The only thing that matters is that Napster is "capable of substantial noninfringing uses." That's not just a quotation from the brief (page 8; page 9 of the PDF), but a direct quotation from the Supreme Court decision in the Sony case! (Emphasis added by Boies and kept by me.)
So after all this gnashing of teeth on
And furthermore, the standard for what is "substantial" is not "substantial in comparison to Napster's overall traffic" but rather "substantial in comparison to the ability for unsigned artists to distribute their work without Napster."
In other words, it's sort of ironic that you ended your pessimistic comment with the statement "Too bad for the little guys, because Napster might have really made a difference," because according to the standard set by previous cases, that's precisely all that's needed!
If you really, as you stated, read through the entire brief, I suggest you read it again. You might be pleasantly surprised at how utterly it demolishes the RIAA's case.
Interestingly enough, American drug companies also price their wares by country and region. This is why the exact same prescription medicine, from the exact same factory, can cost something like 1/4 as much in Mexico as it does in the U.S.
It's the same principle as the DVD regions, but it's being applied to products that are, to my mind, just slightly more important than movies.
- Robin