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...

Comments

Re:Boies Sums It Up

[laertes]

I don't think you quite get it. If you had skimmed beyond the first couple of pages, and not just copied the first bullet pointed list, you might have emerged with an understanding of the laws involved. In the paragraph directly under the list you copied and pasted, there is the legal precedent for the sixth point.

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.

Boies Sums It Up

[TheGreek]

These bullet points from the third page of the PDF(marked as page 2) basically sum the case up:

• Under the Diamond decision and the AHRA, consumers have an absolute right to create and transfer digital music for noncommercial purposes; since its users are not directly infringing, Napster cannot be held liable for contributory infringement.
• Napster's directory service is capable of numerous and substantial non-infringing uses and thus under the Supreme Court's decision in Sony, Napster has no liability.
• Because Napster users use Napster in a variety of ways that constitute "fair use," such as space shifting and sampling, no injunction can issue.
• Plaintiffs have engaged in copyright misuse, which precludes enforcement of their copyrights against Napster.
• No injunction can issue because it would violate the First Amendment rights to free speech of Napster and its user.
• Finally, no injunction can issue because to do so would irrevocably alter the status quo, result in permanent injury to Napster, and ultimately not benefit Plaintiffs.

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. :)

Of Course, None Of This Matters

[Seumas]

Thanks to the DMCA, none of this matters. You don't actually have to be infringing on any copyright to be accused of it. Being accused is enough to force you to remove said content until a resolution is reached.

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

Re:Think of the implications of this for software.

[seeken]

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...

Re:Oops - now and then.

[Imperator]

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.

Re:That is going to hurt

[acidrain]

Yes this is a very good thing. Allow me to quote the pdf file:

...17,000 artists who expressly approve of sharing music through Napster; by contrast, the major labels released only a totla of 2,600 albums last year, and only 150 of those songs were played on the radio on a regular basis...

My point is that the big labels have a strangle hold on the artists and listening public. They are lining thier pockets while the average consumer is exposed to only a small fraction of the potential amount of music that could be made available to them. The big labels also keep most of the profits derived from the artists work, and only very sucsessful artists can make much money at all. Will this mean more music for the consumer, and more money for the artist? Yes. The big 5 are just scared shitless that they will lose thier middleman position and wan't us to belive that non-traditional means of distribution are wrong.

Re:Oops - now and then.

[Signal 11]

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.

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.

Think of the implications of this for software...

[X]

Can you think of any software publishers who have used copyright for anti-competitive purposes? ;-)

Oops - now and then.

[DrPsycho]

This would certainly put a major wrinkle into the plans of the RIAA, to say the very least. I'm forced to chuckle at the awful irony of the organization - who has been thumping lawbooks and screaming cries of legality - being halted by an obscure piece of legal trivia.

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.

the nature of the monkey.

[mcc]

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.

do people read articles before posting?

[Greg_Girty]

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.

Re:So since region coding == anti-competitive....

[SlushDot]

(2) DVD region coding is anti-competitive.

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.

Trading Music is now Commercial Gain!

[burris]

Please be aware that federal law was amended in the Digital Millenium Copyright Act to change the definition of "commercial gain." Commercial gain is now also "the distribution of copyrighted sound recordings in expectation of receipt of other copyrighted sound recordings."

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