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RIAA Responds to Napster - Raises Serious Questions
Cosimo Leipold writes "The RIAA has placed a reply to Napster's now infamous Motion for Stay. The points they raise are very good and well worth a read. It is very interesting to see the claims Napster made in its early days -- including that you would never find a no-name artist on their search (which they now claim is what they are all about!) -- claims that they can't stop pirated music (though it is explained how it could be done) -- claims they can't ask for copyright priviliges from artists (though they already do -- from "new" artists! -- if they can ask "Joe Blow" they can ask Metallica no?) -- etc. It is a damaging read for Napster.
Acrobat Reader required: RIAA PDF"
Woefully, points 1 and 2 (which seemed to be going somewhere) do not lead to point 3. Neither does point 3 serve to tie the premise together. It is true, compelling and misleading. Thus, unless you can shed light on what you meant I cannot say that I see this as anything but a logical fallacy.
Again, please construct an argument. Napster is a filesystem over which users share files containing sound. It turns out that, given a filesystem, users will share copyrighted sounds. Really not Napster's problem any more than it's Kodak's problem that child pornographers use their film. I am strongly in the camp that says that the use of a medium where monitoring activity is possible should not lead to a mandate to monitor activity. Digital camaras should not be required to transmit their images to the FBI, phone switches should not have pre-installed taps and Napster should not have to monitor it's users file sharing transactions in order to prevent copyright infringement. These are all, as far as I can tell, the same issue: should the medium provider (profit-making or not) be required to sanitize and/or monitor it's usage?
You appear to believe half of the RIAA's answer (that shutting down services that don't sanitize or monitor is reasonable), but do you believe what I think is the logical conclusion: that sanitization and monitoring should be required? I'm not trying to say that the RIAA wants this (I think they do, but that's just my personal theory for which I have zero evidence). However, they have certainly taken a big first step.
If people start using Slashdot to share uuencoded MP3s, should Slashdot be shut down? What if they advertize that they're the hottest site for discussion forums full of MP3s? What if they say "fuck the RIAA, we have pirated MP3s on our site"? When does it become a problem of the media provider? Is Exodus (Andover.net's ISP) responsible for the MP3s? Should they be sanitizing the bits at the router? Monitoring for Brittany Spears patterns in the HTTP traffic?
You begin a long and slippery slide the way that the RIAA is going. The only thing I think they can justify is pressing charges against the people trading the music and getting a warrant for the logs on the Napster servers. If there's anything there that identifies users, then they could be busted. The problem is that that would mean directly going after thousands of mostly kids. Can you imagine how pissed their parents will be? How long before that turns into an anti-RIAA backlash that could cost the RIAA millions in legal fees? All for what? To punish fans who tend to be good customers in the first place? No, RIAA wants to shut Napster down so that they look like bad-guys only in the short-term and concentrate their legal guns on a single, easy target.
Welcome to copyright in THIS century.
Napster, the application, is not on trial here. The service is not on trial.. the COMPANY is.
The COMPANY is attempting to make money using their serivce. The put up such service, *knowing* that it would be popular *only* because it would be used primarily to help joe average user share his pirated files with someone else. Something that joe average did *not know how to easily do*.
Therefore, napster is in business to help people pirate. Plain and simple.
Sure, people had FTP sites and such... but napster provided a forum.
Is the tool illegal? No. Is the company breaking the law? I'm starting to think so.
Copyright laws were originally created to prevent corperations from stealing musicians / authors /etc work without just compensation. This works well in book publiishing where copyrights revert back to the author after the first printing. Unfortunatly, the RIAA labels make musicians selll them the copyright outright. I think the only way that traditional music distribution could be fair to artists would be to make it illegal to transfer a copyright away from the original orner, i.e. the labels would only have the rights to a single printing of an album, then it would be the authors. Unfortunatly, the above legal reform seems impossible considering the RIAA's power in cogress.
Now, if you can not fix the laws legally then you should fix them illegally. Musicians like Courtney Love feal that they would make more money if they fans just donated money to them and ignored the record industry---Fairtunes and Upriser are ting to implement a system which allows exactly this. Ideally, people would stop buying CDs and start giving money to artists directly which would totally screw the RIAA labels, thus allowing the artists to broker more benificial deals with their labels.
I think Ms. Love's strategy is a good one. It might work or it might not work, but it seems to be the only real option available to today musicians.. when your getting fucked over bad enough by the establisment then it's time to set fire to the establishment and hope the new order is more to your liking.
BTW> Napster is very very bad since it wants to replace the RIAA's strangle hold on musicians by monopolising the distribution of online music, so we should all try to get people to use diffrent file sharing systems.
The Christian religion has been and still is the principal enemy of moral progress in the world. -- Bertrand Russell
But you cannot shut down all pizza parlors because they can be used for money laundering.
Perhaps you meant to construct an argument instead of introducing a logical fallacy.
They began stealing from the public when they expanded copyright from anything reasonable, when they declared war on fair use copying, and when they have such a monopoly on distribution that artists have no choice but to sign over their rights
The guerrela warfare reaction is the public's response to corporate theft.
It might be technically illegal to break into my neighbor's house to steal something, but if that something was originally stolen from me, and the neighbor has bought off the police so I can't get it back, then technicalities be damned, I have the moral right to retrieve it.
The RIAA have stolen my public domain rights, and stolen artists' rights, and they are suffering the consequences.
Did you see the news about Louis Prima's estate and Disney? Disney says that even though they pay royalties for audio recordings of The Jungle Book, they don't owe royalties on video recordings, even though there is an audio track, because the contract didn't specifically mention the new technologies.
Do you *still* claim the congolmerates have any rights? Do you *still* claim they protect artists?
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Infuriate left and right
The media conglomerates have abused the copyright system. They have stretched it far beyond any reasonable interpretation of being for the public good. It used to be 14 years plus a 14 year extension, now it's 75 years after the author dies. They want to stop fair use. If anyone proposed libraries today, they would scream about copyright infringement.
In other words, they are stealing from the public, using the force of the government to back them up. This has nothing to do with artists' rights and everything to do with theft from the public domain.
They have declared war on the public, and the public is fighting back in the only way possible. The public has overreacted, but the RIAA started the war. When the powerful push the weak too far, the weak fight back in the only way possible. Like the Brits prior to the American Revolution, there comes a time when the oppressed have had enough, and after all these years of overpriced overpadded CDs, the consumers are reacting.
The future involves priceless distribution. The RIAA can no more stop it than King Canute could stop the tide. The RIAA would be better off getting in bed with Napster than trying to kill them, but they are so short sighted they don't see it. They will die.
On another take, how much do you really think the conglomerates are actually losing? Your little brother -- how many of those tunes could he have actually bought? That's the only cost. You can't say he has 100 CD equivalents and that's how much they lost.
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Infuriate left and right
This is where things get confusing. Why would Microsoft want to take source code from Linux and keep things closed-source? Without copyright law, Microsoft would be unable to sell software per se. They could still print their own CDs and stuff, but there would be competition, since their software could be distributed without restriction, so their prices would remain low. The only reason I can think of for why Microsoft would not release the source code is so that they could have a monopoly on technical support. Judging on Microsoft's past behaviour, I guess this isn't too far fetched, though.
The point is, though, you can't just assume that if copyright were to be abolished, the software industry would carry on as it is. It's RMS's opinion that if there were no copyright (and thus there would be no market for software per se), then software developers would not want to keep their source code hidden: there would be no benefit. It's his opinion that software would be distributed in much the same way that GPL software is distributed today. That's why the GPL is designed the way it is.
Of course you can argue with him. Maybe if there were no copyright law, some people still would keep their code locked up. I can't see any benefit in that, but it's possible.
Look, I dislike the English as much as the next guy... but the fact is, clippers are used mostly (not exclusively) to pirate tea, and that's bad. Yes, the King needs to see the writing on the wall that representation is the way to go and that He can't gouge colonists. But that doesn't mean that John Paul and the rest of those pirates are a good thing! They're both in the wrong.
Cheap tea is not a right. The colonist's rights are not being stepped on. Maybe you buy more tea because you tried Jefferson's stuff first... so what? It's still not a right. King George is bone-headed, but He's not wrong on this issue.
It also alarms me that people get this issue confused with freedom of religion, housing militia, etc... these have nothing to do with what the pirates are doing. Religion and housing are about control, using your own property as you wish. Running clippers to get past the British is about making money for Jefferson and his friends, not freedom.
Regardless of Napster's motivations for creating Napster, the service itself is not illegal. There are legitimate purposes for Napster, therefore Napster should win.
RIAA is pulling a moral stand here, trying to assasinate Napster's character. If Napster is a greedy, corporate entity like RIAA says it is, I'm still going to root for them over the greedy, corporate entity of RIAA!
Refrag
I have a website. It's about Macs.
From the brief:
The AHRA balances the interests of manufacturers, consumers, and copyright owners by plac[ing] restrictions only upon a specific type of recording device, specifically defined in the statute, requiring such devices to be equipped with copy protections and that royalty payments be made based on their sale, and exempting consumers from copyright infringement lawsuits for private uses of AHRA-covered devices: In RIAA v. Diamond Multimedia Systems, Inc., 180 F.3d 1072, 1074-1075 (9th Cir. 1999), this Court squarely held that [u]nder the plain meaning of the [AHRA's] definition of digital audio recording devices, computers (and their hard drives) are not digital audio recording devices... Diamond also held that MP3 files contained on computer hard drives are not digital musical recordings. 180 F.3d at 1076-77. Thus, under Diamond, a computer is not a covered device, and a copy made by one Napster user of an MP3 file residing on another Napster user's computer hard drive is not a copy of a digital musical recording, and is not covered by Section 1008. 17 U.S.C. 1001(4)(A).
Here is the RIAA's bait and switch.
The bait:
The question being addressed in the Diamond Multimedia case was whether or not computers and MP3 files are "digital audio recording devices" and "digital musical recordings" for the purpose of determining whether those devices were required to implement SCMS.
The switch:
The RIAA is claiming that only activities using devices and media covered by the SCMS and royalty requirements are protected by 1008. Unfortunately for them, they have made this up out of thin air.
The appeals court directly addressed this argument in lifting the injunction. From the text of the stay:
The court reached its conclusion that Napster users were engaged in direct infringement in part because
o it ruled that 17 USC 1008's protections only applied to copying by specifically identified devices rather than, as this Court said in RIAA v. Diamond Multimedia Syst., Inc., 180 F.3d 1072 (9 th Cir. 1999), to all noncommercial copying by consumers.1
1 The court relied on the fact that this Court in Diamond Multimedia had held (in the context of the AHRA's serial copying and royalty provisions) that digital audio recording device did not include computer hard-drives. The court below ignored, however, that 17 U.S.C. 1008 permits non-commercial copying by consumers using either analog or digital audio recording devices or "such a device"; that the legislative history makes clear that Congress intended by that language to immunize all non-commercial copying of music by consumers; that the same Diamond Multimedia Court expressly said that 17 U.S.C. 1008 "protects all noncommercial copying by consumers of digital and analog musical recordings" (180 F.3d at 1079); and that throughout the Diamond Multimedia opinion the Court discusses copying of music using computer hard-drives as AHRA protected activity.
The RIAA can of course continue to pursue their failed legal theory in this highly symphathetic lower court, but if the lower court finds in favor of the RIAA for this reason, the appeals court has all but said it will overturn a finding based on such a theory.
The other key point in Napster's defense is the argument that the activities of Napsters' users are non-commercial. The RIAA claims that Napsters are engaging in commercial activity:The RIAA can argue this point all they want to, but I don't think that they can make the case. This law simply forbids "quota" or "ratio" requirements, nothing more. This is not how Napster works. When someone makes files available on Napster, there is no expectation that they will be rewarded for their contribution by being given subsequent access to other files. When someone downloads files from Napster, there is no expectation or requirement that they make files available in return. Napster is probably the only possible file sharing system that is absolutely, authentically non-commercial with respect to its users' activities.
The RIAA reply goes on to try and prove that users of Napster are not engaging in fair use. This is irrelevant because Section 1008 does not say:It says, instead, If the activities of Napsters' users are protected by Section 1008, then the rest of the RIAA case disintegrates. If Napsters' users are not committing infringement, then fair use is not even an issue, and Napster cannot be liable for contributory infringement if there is no actual infringement.
In short, I don't think that the RIAA has made their case. Their counterargument is based on the exact legal theories that the Appeals court firmly rejected in overturning the injunction.
Although I cannot stand the RIAA, the more I think about it something just seems wrong about Napster making a profit off of someone elses work.
If Napster was not doing this is for profit, then it would be an easier case for me. But with Napster doing this as a business, it seems fair that the record companies should get a cut; even if they don't really deserve any more money.
The MPAA case is a lot easier; they (the MPAA) are clearly in the wrong. But the RIAA have some valid points, and they are sounding more valid all the time.
Gnutella, on the other hand, is not a business and is therefore exempt, IMHO.
While the RIAA may not be the best model, it certainly stands for one thing - copyright protection. Even that Linux kernel which you find dear is protected under the same copyright. "My enemy's enemy..." and all that: the RIAA stands in defense of basic copyright. Not even software licensing or anything legally questionable, but simply the copy protection part of copyright that's been at the heart of copyright law for many many years.
While I don't like the RIAA's business decisions, it's the same as if Microsoft were forced to defend their copyright. Of course we would want them to win; our beloved GPL defense rests upon the same things that Microsoft's EULA rests upon. While we may not like Microsoft as a business, I'd find it hard to condemn Microsoft for defending its copyright. Same with the RIAA>
Free BeOS, runs from a Linux partition