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

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: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.

Think of the implications of this for software...

[X]

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

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.