The Heavenly Jukebox, From Hell

davecb linked us to a story at The Atlantic about the whole Napster, DeCSS, RIAA blah blah blah thats been all the rage with the kids these days. Talks about how this case is bigger then just Napster: its results will affect the future of democracy. It's a really well written piece that you definitely should read if you're following this stuff.

Comments

People, don't miss the point

[CokeBear]

Napster represents a fundamental shift in our economic system that has been in the making for many years.
Our economic system is bassed on scarcity. Basically, as long as there is not an unlimited supply of something, it has value. This works very well for physical objects like pork bellies and RAM chips. Unfortunately (or fortunately), this system falls apart in the virtual world. There is no scarcity... there is an unlimited supply, so the laws of supply and demand don't apply.

The RIAA (and MPAA, and SPA) are trying to apply real world economics to the virtual world, and this round peg won't fit in the square hole, no matter how hard they hammer.

Any economists out there?

Napster == Public Library

[ToLu the Happy Furby]

No, not legally--I understand why copyright law is usually read such that Napster users might be infringing but library card holders are not. (On the other hand I'm pretty sure I remember hearing that the book publishers tried long and hard to sue public libraries out of existence when they first appeared.) But in terms of its effect on the marketplace for music, its moral ramifications, and its societal implications, I challenge anyone to show me a relevant difference between Napster (in its current form) and your local public library.

Both are places where you can obtain a copy of a copyrighted work, and use and enjoy it in its intended manner, for free. In both, the original copy of a work is donated out of the generosity of their own heart by someone who has (presumably) legally bought and paid for the original copyrighted work. (Of course, in the case of a public library, such a person has done a "good deed", while with Napster they have engaged in "rampant piracy" or some such thing.) Sure, a library book doesn't have the same look-and-feel as one you'd buy yourself--yellowed pages, that krinkly plastic book jacket--but MP3's are even worse: no physical CD, no liner notes, no cover art; the risk of getting a bad recording, a recording that chirps or hiccups or cuts off just before the end of the song; and the certainty that no matter what you get it won't play on your stereo, and if it could it would sound like crap compared to the original CD.

Yes, you have to return or renew library books after two weeks, but the point is that's good enough for how most people enjoy most books--they read them once and never look at them again. Similarly, Napster allows you an experience that is "good enough for how most people enjoy most songs"--that is, if you've got some tune stuck in your head, or just want some background music while you surf the web, you fire up Napster and get it. No, a public library isn't good enough to replace ownership in the case of those really important books that really impact you and you just want to have around...but neither is Napster. For a truly moving musical experience, you need a real CD (or good vinyl) on a real stereo, not some 128 kpbs muddle, decrypted in an electrically noisy environment, coming out your cheap underpowered magnetically-shielded plastic speakers. That is, the fact that you don't get to keep library books is a look-and-feel issue, not a utility issue--and the public library is still ahead of MP3 in terms of look-and-feel.

If anything, libraries pose a much greater danger to the publishing industry than Napster does to the RIAA, because once you have checked a book out of the library and read it, you are almost certain never to purchase it. With Napster, on the other hand, downloading an MP3 arguably makes you more likely to purchase the CD than before; certainly there is conclusive evidence that Napster increases CD purchases overall.

And yet, public libraries are held up as the paragon of the public good, the ideal of a fostered community, the sort of thing politicians throw into speeches to demonstrate what's right about America (or, more likely, what used to be right about America but no longer exists). Meanwhile, Napster--which, if anything, encourages more community (libraries, after all, are known for explicitly discouraging chatting), illustrates the possibility for knowledge shared throughout humanity which is inherent in the Internet, leads to more legal music purchasing, and facilitates an alternative to an industry which affords the artists much fewer rights and a much lower share of the monetary fruits of their labor than does the publishing industry--is sued, demonized, held up as an example of everything that's wrong and immoral about today's culture.

Huh? What gives?? Before the entertainment industry bought new copyright laws in 1997 and 1998, there was no legal concept of copyright infringement without corresponding non-commercial gains. And yet suddenly everyone believes that sharing music with others is not only illegal (it's still arguable whether that's true) but somehow immoral as well?? Somehow everyone has this ridiculous idea that copyright entitles a copyright holder to oversee every use his/her content is put to, fair use be damned?? (For those who don't understand why this is so absurd: copyright is automatically extended to every single piece of content ever created, no matter by whom or for what purpose. The above idea would mean you would need to get the permission of a gas station before you could submit the receipt they gave you as part of an expense account.)

Napster should be held up as an example of what's right with the world, of a way the promise of technology is enabling people to share the art they love, to expand their musical horizons, or just to get a copy of the new NSync song to play as a joke. It's an example of how the Internet will revolutionize an industry by opening up alternatives to a greedy oligopoly which stifles artists' rights to their own creations.

And yet even on /. we see people dismissing Napster as nothing but a bunch of immoral law-breaking pirating hooligans. Guess what, people: you've been trolled.

MotleyFool: `Intellectual Property Is an Oxymoron'

[Mike Hicks]

Just thought I'd point this out.
--
Ski-U-Mah!

The problem with protesters (rant)

[Hard_Code]

The problem is, nowadays *everybody* is (or thinks they are) ridden with existential post-modern teenage angst. There is something wrong, but they can't quite figure it out. So the easiest thing is to "protest". Protest what? Anything. Everything. Who cares? It gives meaning. Like the idiots who threw rocks over the fence at the police at the DNC, inciting them to rampage over the majority of *peaceful* *innocent* protesters there. Like anarchists dressed in black just to incite trouble (if it isn't *just* to incite trouble, it is at least an obvious and deliberate effect).

I get angry when the mindless bleating of wannabees overpowers the real issues that real protesters are attempting to make. For instance, like Lars here. I'm sick of hearing every johnny come lately ripping Metallica because it's the cool thing to do. Metallica has a point that some don't have the attention span to consider. Metallica is not anti-fan. Metallica is not pro-corporation. Metallica is not a sellout and corporate whore. Metallica wants one thing that we would otherwise be championing here on Slashdot: *artist control of their own music*. Metallica's point is not that Napster is inherently wrong, or that technology should be banned. Their point is that *they* should be able to decide what they want to do with their music. Not big record companies. Not Napster. And this isn't even about copyright infringement or "lost revenue". Metallica freely allows bootlegging. The problem is that with all our shouting about how Napster is the David to the record industries goliath, we have forgotten that the *artists* are the David to *everybody*. Napster is a great service. Gnutella is a great technology. Metallica's contention is that they, as the artist, should choose how they want to interact with their fans. And they only sued Napster to raise this issue. Just like Metallica should be able to decide what songs of theirs radio stations play, and what image they portray, they should be able to self-determine how they want to interact with their fans. Don't lump artists in with the record companies and Napster as the lone hero. It's the other way around. Napster is entering in exclusive deals with the record companies to jointly exploit artists.

Stop and think about what you're shouting about. Think about *who* you really support (I'm guessing you are pro-[your favorite band] not pro-[free music, gimme!]). While it tastes great, Naptster's free beer (music for free) is blocking Metallica's free speech (self-determination on what and how they express themselves to fans). I think the artists know just a little bit what they're talking about. Get behind them.

Artists ARE being paid for non-commercial copying

[jms]

Napster is for sharing music. That in itself is not a bad thing. But when people systemically use the system to infringe on copyright, then I think Napster has *some* responsibility.

You're contradicting yourself. Is sharing music a good or a bad thing? Is it a good thing when it is done quietly, behind closed doors, by a few people, but a bad thing when it is used "systematically"?

Napster isn't fair use anyway. Music sharing is explicitly authorized by the copyright laws. In 1992, the RIAA went to Congress in a state of hysteria -- Digital Audio Tape was about to destroy the entire recording industry! The RIAA wanted, among other things, to receive a "royalty" on all digital recorders and media to compensate for the loss of sales due to personal, non-commercial copying.

Congress said, "Ok ... but if we give you royalties for non-commercial copying, then you have to agree that non-commercial copying is legal."

The RIAA, more concerned with destroying the DAT format, agreed, and both Congress and the RIAA released announcements that an agreement had been reached that would break the legal gridlock, and bring digital recording to the masses. The result of this little insider lovefest is known as Title 17 Chapter 10.

Title 17 Chapter 10 is a nice little exercise in dirty lawmaking. Let's go through it.

Section 1001 defines all the terms.

Section 1002 says that all consumer digital audio recorders must include SCMS -- which prevents second-generation copies of DAT tapes.

Section 1003 says that anyone manufacturing digital audio recording equipment or media, including audio CDRs, has to make "royalty" payments.

Section 1004 says how much the royalty payments are.

Section 1005 says that the royalty payments are to be deposited in an account controlled and managed by the U.S. Treasury.

Section 1006 specifies how the loot is to be divided up. It's basically a list of the sponsors of the bill.

(1.75%) of the royalties are paid to the American Federation of Musicians, to be paid to "non-featured" musicians (studio musicians)
(0.92%) of the royalties are paid to the American Federation of Television and Radio Artists, to be paid to "non-featured" vocalists (backup vocalists)
(25.60%) of the royalties are paid to "featured recording artists", including such bands as Metallica.
(38.40%) of the royalties are paid to "copyright owners" (the RIAA companies)
(16.67%) of the royalties are paid to "music publishers"
(16.67%) of the royalties are paid to music writers, including such bands as Metallica who write their own songs.

Section 1007 specifies procedures for distributing the royalties. Anyone interesting in sharing the loot basically reports their record sales to the Librarian of Congress, and the loot is divided up proportionally. Thus, the RIAA, which controls the vast majority of record sales, gets nearly all of the money.

Section 1008 is what makes Napster legal. This is what the general public receives in exchange for all this money being taken by the government and spread around the recording industry:


SUBCHAPTER D. PROHIBITION ON CERTAIN INFRINGEMENT ACTIONS, REMEDIES, AND ARBITRATION

Section 1008. Prohibition on certain infringement actions

No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

Section 1009 specifies awards for damages

Section 1010 provides for binding arbitration -- a provision that allows a company to obtain legal assurance that they are selling a legal product before bringing it to market.

So, in conclusion, you are right ... Napster is NOT fair use. Fair use does not even enter into Napster. Wholesale Non-commercial copying of musical works (only) is not a copyright violation, and has not been one since 1992. This is the point that the recording industry is trying to bury. But the fact remains, The RIAA has been collecting royalties on all blank digital audio recording devices and media since 1992, and has been (or is supposed to be) paying that money out to artists and writers. There is no need to wring our hands looking for a way to "pay artists." The "way" already exists, and the money is already being collected. The RIAA just doesn't want you to know that so that you will feel guilty and won't exercise the right that you are paying for, with real money, every time you buy an audio CDR.

Bottom line, if you want to find out what your rights are, don't expect the RIAA to help you find them out. Read the law instead.

Atlantic Monthly

[Alien54]

The magazine has specialized in longer reflective and analytical articles that try to go into all of the aspects of the situation in some depth. As a friend of mine used to say,"This requires mastery of the fine art of reading books that do not have pictures". In other words, people whose primary education is MTV, and other mass marketing tools need not apply.

I found the article interesting and insightful. It certainly reflects the the authors own mixed feelings about the technology. This section from part four was particularly amusing:

"When I was younger, I was briefly in a rock band. Some of its members were not completely devoid of musical talent; alas, I was not one of them. As often occurs in such situations, I was assigned to the drums. Eventually the other members decided that having no ability to keep a beat was even more of a handicap on the drums than on other instruments, and I was replaced by someone who also couldn't play drums but at least had the potential to learn.

I recently obtained a tape we made in performance. Because I wanted to learn more about digital music, I decided to make a project of converting the songs on the tape into MP3 files. After considerable fussing I was able to listen to my younger self on the tinny little speakers that flank my monitor. The experience failed to provoke regret about the road not taken. In fact, it provoked little thought of any kind until a few days later, when I loaded up Gnutella.

After the Gnutella window came up on my screen, I saw that its users were sharing about a million megabytes' worth of pictures, sounds, programs, and texts. And then, to my shock, I saw that somebody was trying to copy my band's music.

Because the last thing I wanted was to reveal this stuff to the world, I quickly slammed the program shut. After double-checking to ensure that Gnutella wasn't running, I sat in my chair, somewhat unnerved. I was safe -- should I run for public office, my opponent would not be able to use the music to ridicule me in attack ads. But who had tried to copy it, and how had they found it? A few minutes later I figured it out. I had stuck the MP3s in a directory with other MP3s. Because I couldn't remember the names of the songs we played, I had awarded whimsical names to the computer files of those songs. Some of the names were variants on the names of famous rock tunes. A Gnutella user searching for the originals had come across mine and tried to download one of them.

In this small way I walked in Lars Ulrich's shoes. The impetus for Metallica's legal attack on Napster was the circulation on the service of rough drafts of "I Disappear," a single from the soundtrack of Mission: Impossible 2. With the volatile promiscuity of the Internet, unfinished versions had been copied hundreds of times, depriving the group of control over its own work and, possibly, of some sales. When the musicians complained, they were astounded by the angry reaction. Trying to stop what they viewed as the forced publication of private material, Metallica -- rebellious rock-and-rollers for twenty years -- suddenly found themselves accused of censorship and toadying to corporate America."

Not everyone is a network security guru, y'know. But there is alot more in the article, and at least the guy was trying to think about this.

Maybe this isn't news. maybe it should be.

Re:Napster vs. Record Co. Irony

[Rupert]

People on /. are supportive of Napster (as in .exe) for the same reason they oppose gun control: they don't blame the tool for the actions of the user.

I think you'll see a lot less support for Napster (as in Inc.) once they start trying to make a profit. Right now they're just giving us software, server time, disk space and connectivity. What geek wouldn't love that?

--

Re:Is Gnutella really that hard?

[generic-man]

It really works more like this:

1. Start client.
2. Go to http://gnutella.wego.com to find a host.
3. Try the host.
4. Try another host.
5. Repeat until you can get four good connections. (This can take several minutes on a bad day, on a dial-up connection.)
6. Enter the words you are looking for.
7. Wait.
8. Wait.
9. Wait.
10. Wait.
11. Download the files.
12. Realize that they're pr0n, ads, or VB script. (Newbies don't know the difference between a .mp3 and a .mp3.vbs file.)
13. Repeat the process until you've retrieved the file you're looking for.

Gnutella is a nice start, but it's really a curiosity more than a practical replacement for Napster. On a dial-up connection with 4 gnet connections, more than half of your bandwidth goes to (trying to) routing packets.

Re:The problem with ranters (protest)

[jamused]

Unfortunately for Lars and Metallica, they want something ("artist control of their own music") that artists have never had, do not have under current copyright law, and for good public policy reasons ought never to have. Free-speech is a red herring--it's not the issue here; the right to free speech is completely distinct from the (fictional) right to be paid for your speech. Metallica has excercised their right to free speech by recording their music and having it published. Period, end of that story.

What's actually at issue is the real right (backed by copyright law) of the public, once having purchased Metallica's music, to do whatever they want with it, including making copies and sharing them with their friends. Free use of information, including things like recordings of Metallica performances, is legally recognized as the default state. As a matter of public policy in order to encourage the creation of artistic works, and not because of a "right" of an artist to be in permanent control of his work even after he's sold it, the law grants a limited, temporary monopoly on the commercial distribution of the artist's work--but that's the exception, not the rule--and the law makes it clear that the limited temporary monopoly does not override the underlying right of the consumer to use the work (including making copies for non-commercial purposes, excerpting for reviews, and all the other things that fall under "fair use").

The record companies have been doing everything in their power to convert that limited temporary monopoly into a permanent, unlimited one, and erase the fundamental distinction between information (which can be copied infinitely without making anyone poorer) and real property (which cannot).