Amicus Brief For Napster -- From AT&T And Friends

HiyaPower writes: "The Standard has an interesting article about the amicus filed today by some fairly heavyweight industry folks (e.g. Yahoo, AT&T, etc.). While they are a bit wishy-washy about Napster itself and the standard of "higher knowledge", they are quite concerned that the ruling in the Napster case could be applied much more broadly against isps in general. The RIAA brief is due Sept. 8, so it will be a bit before they go at this again, but this is getting beyond just the Napster vs RIAA stage of involvement in concern by company lawyers, as well it should." Seems like some appropriate self-interest is involved here -- after all, bad laws may benefit a few folks, but the reality of arbitary shuttings-down is one that large ISPs and most others don't really want in the long term. And if new technology is outlawed on the basis of its possible disreputable use, it's potential good will be blithely overlooked.

Comments

There's a difference

[donutello]

The ruling, as I read it, did not ask Napster to shut down. It asked Napster to restrict the distribution of copyrighted material. The rest of this argument assumes that the distribution of copyrighted material is illegal - as the judge did.

While technically impossible to do, it is not difficult for Napster to make a reasonable effort to do so. Napster maintains an index of the music. It would not be impossible to set up filters which would work in most cases. Any judge would be lenient with them as long as they appeared to be making a reasonable effort.

But that's not what Napster's about. While they would like to pretend that they exist to support independent artists, etc. the truth of the matter is that Napsters subscribers are there because they like to distribute copyrighted material for free. Napster would lose its entire user base if it were to restrict copyrighted material. That is the reason why the judgement would mean shutting down Napster.

The argument about the Betamax standard is irrelevant because the judge did not outlaw Napster. The judge asked Napster to make reasonable attempts to prevent (and these are not as hard to do as Napster would pretend they are) the distribution of illegal material. Yes, there are several non-illegal uses of Napster and those are NOT being outlawed.

Re:There's a difference

[Skuld]

But thats like asking the VCR companies to keep tabs on people pirating video tapes - and terminating the use of the player if it is used for illegal purposes (sounds like Divx actually).

Or asking microsoft to monitor people's e-mail in outlook express so that nothing illegal is discussed.

Or better yet - asking Slashdot to be responsible for its user comments content (in case you haven't heard they believe they aren't - see Slashdot vs. Microsoft...)

Personally to a certian extent I don't think software companies should be held responsible for the users actions. Is AOL or microsoft held responsible when someone uses their tools to make and distrobute child pornography? Or when the police pull you over for speeding or violating other traffic laws do you mail the ticket to car company complaining the whole way that they made the car was too quick?

I dunno - I guess what really matters here is intent.

Re:There's a difference

[ToLu the Happy Furby]

Wow. Trolling at level 0.

There are plenty of legally arguable fair uses of Betamax (and video taping technology for that matter) beyond time-shifting TV shows.

Well that was the only one made to the Supreme Court in MPAA v. Sony Betamax, and that was the one on which the case was decided. Remember, neither video camcorders nor video rentals existed at the time.

Now you're just making stuff up. Napster never asked for any such list and the RIAA never refused one. In fact I remember a post on Slashdot by someone saying such a list didn't exist to which another poster replied with a link.

Well I'd appreciate such a link if you could dig it up. In the meantime, I'm most certainly *not* making stuff up. This and indeed all my arguments are taken directly from Napster's legal filings. Particularly their opposition brief (pp. 19) and appeal brief (pp. 5, 13-14). (One other thing: turns out I was mistaken with my 1 million figure; the actual estimate of RIAA-copyrighted recordings is a whopping 10 million.) Unless you are accusing Napster of lying to the judge by pretending they'd petitioned the plaintiffs on the court record for such a list (not a very clever lie, IMO), then you're the one making stuff up.

And the judge came down on Napster because there was no doubt in her mind, nor should there be any in anyone else's mind, that Napster existed solely for the purpose of being able to distribute copyrighted music. Their advertisements claiming that you won't find crappy no-name bands on their site are proof to this effect. Then they smugly lied and pretended that they existed to support independent artists.

Guess what? All of Sony's advertisements for the Betamax highlighted the fact that you could copy movies off TV and watch them as much as you want--which is unambiguously copyright infringment. Napster's advertisements highlighted the fact that it could allow users to noncommercially copy copyrighted recordings from other users--which is of at worst ambiguous legality because the AHRA specifically excludes all noncommercial copying of recordings from being considered infringing. Even if this noncommercial copying were illegal (again, the AHRA specifically legalizes it), Napster's practices are no different from Sony's. Indeed, even if Napster did just invent its New Artist program to stave off a lawsuit, the fact is that they already have more artists signed to it and authorizing the sharing of their songs than there are artists signed with all major labels! Similarly, it is almost certain that Sony came up with the "time-shifting is fair use" idea after they had been sued. Luckily, the correct standard from the Sony case is not when the noninfringing use was first advertised, or whether the defendent even considered such a noninfringing use for their technology. The standard is, once again, whether the service is "capable of significant noninfringing use." This is a direct quotation from the Supreme Court's Sony decision (emphasis added). So long as this condition is fulfilled (and it very obviously is), Napster can't be held liable.

I have no problems with judges throwing the book at offenders who are smug about their crimes and lie and try to use technicalities to squirm out. The judge did this in the Microsoft trial and did the same here too.

If you do consider the Supreme Court's precedent setting standard in a perfectly analagous case a "technicality", then I guess you have no problem outlawing VCR's which, incidentally, now provide the majority of MPAA income. Meanwhile, the judicial system functions on the basis of laws and precedents, whether you call them "technicalities" or not. MS was found guilty because it was determined that they broke the law, as it is set by Congress and interpreted by judicial precedent, "technicalities" and all. The fact that they were arrogant (much more so than Napster) about it didn't help their case, but is no reason to find them guilty. In the Napster case, on the other hand, Napster is clearly not liable, both on the basis of the applicable laws (the AHRA and the safe harbor provision of the DMCA) and on the basis of a Supreme Court precedent, the strongest judicial precedent in the land.

Re:There's a difference

[ToLu the Happy Furby]

The Supreme Court did NOT rule that anything other than timeshifting was copyright violation.
They ruled that copyright law cannot be used to outlaw a device that has significant legitimate uses, or even just the potential for such uses. Timesharing was ruled to be such a use. Because the Court only needed to find one legitimate use to throw out the studios' case, they didn't need to rule on every possible use of VCR technology.

Fine, that's true. Still, either the lower courts found that "librarying" was indeed copyright infringement or Sony did not even contest this fact. In any case, the point still stands that there are several significant noninfringing uses of Napster, easily meeting the Sony test. And it stands that the fair use that exonerated them was completely different from the uses Sony encouraged through their advertising.

Re:There's a difference

[ToLu the Happy Furby]

The argument about the Betamax standard is irrelevant because the judge did not outlaw Napster. The judge asked Napster to make reasonable attempts to prevent (and these are not as hard to do as Napster would pretend they are) the distribution of illegal material. Yes, there are several non-illegal uses of Napster and those are NOT being outlawed.

No. The only legally argued fair use of the Betamax was time-shifting--watching your fav TV shows at a different time because you weren't home when they were aired. In other words, according to the Betamax case, it's only fair use if you watch everything you tape with your VCR exactly once; beyond that, it's "librarying", which is copyright violation. The Supreme Court could have considered forcing Sony to, for example, make the Betamax erase a tape as it played it. That's the equivalent of forcing Napster to put up filters that would somehow filter out RIAA-copyrighted songs.

Indeed, the Betamax technical solution which I just came up with off the top of my head would be considerably easier to implement than any logical filtering system on Napster. Consider, first, that any filtering system on Napster would have to filter out bad stuff, rather than just allowing good stuff. This is because if I want to, say, take advantage of Napster's viral distribution model to distribute my band's songs and get us noticed, I don't have to register with anyone, and shouldn't have to. Also there'd be no way of dealing with live recordings, which are copyright of the band, not the label, and many if not most bands allow their exchange. But suddenly we run into our first problem--how to tell a studio version ("illegal") from a live one (legal)?? Impossible. But let's forget about that for a second. So now we just need a list of all the RIAA-copyrighted songs to filter out of Napster. Fine. One problem--such a list doesn't exist. Napster has repeatedly asked for it in order to comply with a possible injunction, and the RIAA hasn't given them one. Indeed, when one considers that estimates of the size of such a list run to over 1,000,000 recordings, it's no wonder they haven't complied. And it's pretty obvious that filtering out 1,000,000 titles, even if they knew what they were, would indeed be quite an onerous burden on Napster. But that's the real problem--they're just titles. All that's uploaded to Napster is a file name and a file location. When you think about it, there's almost no way to filter out a list of RIAA-copyrighted songs (much less a list 1,000,000 entries long) based only on song titles. Do you only filter out exact matches? A quick search on Napster shows that the same song is probably named with at least 10 different filenames. Do you filter out anything that includes, say, "Metallica" or "Enter Sandman"? What about "my band covers Metallica-Enter Sandman.mp3"? Or just "Ode to Metallica.mp3"? With up to 1,000,000 names to filter out, it's pretty clear that the names of many authorized songs would conflict with RIAA-copyrighted names. What do you do then??

So, you see, it would have been considerably easier to modify the VCR to be fair use-only than it would Napster. Indeed, all the foregoing examples miss one crucial point: the download of an RIAA-copyrighted song can be fair use, if it is for space-shifting or sampling purposes. Indeed, research shows that a significant portion of Napster traffic falls into these categories. This is the analogous activity to the time-shifting which the Supreme Court found was significant enough to allow the Betamax to continue. Thus, to follow your suggestion, Napster would need to create a filter which not only searched to filter out those 1,000,000 "unauthorized" songs (based on a list they never recieved and which may not exist), but further attempted to determine whether the downloading person owned some copy of the song already (this is possible, ala my.mp3.com, if it's on CD, though extremely onerous--Napster needs a copy of every CD in the world plus must run a challenge-and-response test for each download; what if they own it on tape, vinyl, etc.?), or attempt to ensure that they only listen to it for "sampling" purposes. Maybe they could just insert brain probes which would periodically administer electric shocks if someone enjoyed a song they downloaded but didn't buy it.

Oh yeah--and you have to develop it all and put it in place by Friday night (the judges ruling came down on Tuesday afternoon).

So there's your filter. And there's your proof that what the judge's original injuction was indeed designed to shut down Napster, not to just rid it of RIAA-copyrighted songs. The judge's own statements in handing down the injunction make it painfully clear that she didn't give a shit whether it was possible to fulfill it short of shutting down Napster completely. But that's all besides the point, which is that the Supreme Court rejected such a ruling against the Betamax, even though it would have been considerably easier to implement. Instead, they put in place a legal doctrine, stating that a service is not guilty of contributory copyright infringement as long as it is "capable of significant noninfringing use". Napster is, as you admit, very capable of such use, and is indeed used that way every day. Thus, by the Betamax standard, it ought to win the case.

Re:There's a difference

[jareds]

While technically impossible to do, it is not difficult for Napster to make a reasonable effort to do so. Napster maintains an index of the music. It would not be impossible to set up filters which would work in most cases. Any judge would be lenient with them as long as they appeared to be making a reasonable effort.

Notwithstanding the fact that it would pretty hard to set up a filter when they've never been given a list of RIAA's copyrighted songs, the judge's order very strictly specified that no material copyrighted by the plaintiffs be transferred using Napster's service. Inevitably, a filter would fail in many cases, and Napster would be in contempt of court. Keeping the service running with a filter and hoping the judge would be lenient would be about as stupid as the hope method of avoiding pregnancy. Just because you might get lucky doesn't mean you should go and violate a court order.

The judges are doing their jobs...

[Anonymous Coward]

... as I understand it (and IANAL). But at this level of the legal system, the judges are not supposed to say "DMCA is unconstitutional". Instead, they are supposed to say, "Napster is violating the DMCA" and "2600 violated the DMCA." That's the judge's job. It's the job of the Supreme Court to declare laws unconstitutional; it's not the job of the lower courts (not sure about the appellate court).

So all this is really good. Between Napster and DeCSS, we have two cases where judges correctly used the DMCA to reach absolutely appalling conclusions. That should send a clear enough signal to the Supreme Court that the DMCA is horribly messed up...

Re:The judges are doing their jobs...

[jareds]

... as I understand it (and IANAL). But at this level of the legal system, the judges are not supposed to say "DMCA is unconstitutional". Instead, they are supposed to say, "Napster is violating the DMCA" and "2600 violated the DMCA." That's the judge's job. It's the job of the Supreme Court to declare laws unconstitutional; it's not the job of the lower courts (not sure about the appellate court).

Any judge can rule that a law is unconstitutional, but the lower a judge is, the smaller the region over which they set precedent. The Supreme Court is important because they set precedent for an entire nation, and because, unlike lower courts, there isn't uncertainty over whether the opinion will be overturned in the near future.

Lower court judges don't often have the guts to rule laws unconstitutional, but in theory, if the DMCA is unconstitutional, there is no reason for the lower court to rule otherwise. In such event, the RIAA would appeal to the higher courts in due course, which would set precedent at the higher levels.

IANAL

The answer is obvious - sue everyone!

[Skuld]

The ethernet companies - because they allow you to copy mass amounts of pirate information is real time to your computer

The soundcard companies - because without them you wouldn't be able to listen to the pirated music

The Microprocessor companies - because they don't have some evil protection unit to prevent you from doing illegal things with your computer (hey wait - thats DVD)

RFC - because without all those friggin "protocols" you wouldn't be able to transfer the music in the first place

Microsoft - They make the OS that napster runs on for heavens sake

I guess my big beef with these more recent lawsuits is that if they do set a precident where is it going to end? Other the other hand does that mean we can sue the record company that makes songs about suicide because teenagers are getting depressed and suicidal?

Re:The answer is obvious - sue everyone!

[Skuld]

Yup - thats my point - and if were going to hold the record companies liable we should hold the movie companies liable too.

Its kinda funny though because in times past the record companies and movie companies have always said "no one made them do that". Well Napster not forcing pirate MP3's onto their network either.

Re:The answer is obvious - sue everyone!

[mtvsucks]

they already have. if i recall correctly judas preist and several others have been sued over kids killing themselves. i know judas preist got off, but not by much.

Re:The answer is obvious - sue everyone!

[NaughtyEddie]

Yeah, but in that case they sued the band Judas Priest. Maybe the record companies should be held liable for trafficking (er ... racketeering) in records which "everybody knows" incite violence, hatred towards women, etc. etc.

17 USC 512

[swerdloff]

This is what the safe harbor provisions of the DMCA were specifically designed for - indemnification of Internet Service Providers from business-destroying injunctions, even when there was the possibility of copyright infringement.

The fact that the judge overlooked that fact is a bit mind boggling.

Unless I missed something and Napster has been actually doing some of the work by means _other_ than automated processes, then they fit 512(a), no? And if so, then the injunctive relief that may be afforded the RIAA can only be under 512(j)(1)(B) which provides:

(B)

If the service provider qualifies for the limitation on remedies described in subsection (a), the court may only grant injunctive relief in one or both of the following forms:

(i) An order restraining the service provider from providing access to a subscriber or account holder of the service provider's system or network who is using the provider's service to engage in infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified inthe order.

(ii) An order restraining the service provider from providing access, by taking reasonable steps specified in the order to block access, to a specific, identified, online location outside the United States.

---
This of course begs the question of whether Napster finds itself within a 512(a) framework, which obviously the judge didn't see (I don't know why not, but IANAL _and_ I haven't read the decision) but if they do then the relief afforded the RIAA was wrong. I think. Like I say, IANAL.

And, because IANAL, this isn't legal advice, just MHO, and should be treated as such. In other words: don't rely on this, even for coctail party discussion.

Full text of 17 USC 512 is available online at http://www.bitlaw.com/source/17usc/512.html

Re:17 USC 512

[CentrX]

Essentially, the government is going to enforce the parts of the DMCA that are "bad" (and unconstitutional) and not enforce that parts about the legislation that are "good" (and helped the legislation find its way through Congress). I don't doubt the government would do this.

Chris Hagar

Re:17 USC 512

[Wah]

ahh, but you're fogetting the MPAA/DVD judge's caveat.

It doesn't matter what you do, but if you think you are clever doing it, it must be illegal.

--

Re:They Aren't Fighting the DMCA, they are pro-DMC

[cotcomsol]

Regarding your sig: For some reason I don't think ESR is probably loaded with cash: his wealth (what's left of it now, last I checked VA was down significantly) is purely speculative.

Not to mention $22b is hardly a drop in Bill's bucket :)

Americans Stand Up For Their Right To Sue

[WillAffleck]

First they took away my access to FBI files, but I said nothing, because I don't have an FBI file.

Then they took away my software, because I bought software in Virginia, which passed UCITA, but I didn't care, because I bought an open source replacement package.

Then they remotely disabled my computer, because I said bad things about the software manufacturer, which was against the UCITA provision on the web page they never told me about, so it was legal. But I didn't care, because I backup my system.

Then they disabled Napster - so I sued their ashes off in court. Because, goldarnit, I'm an American, and you'll take away my right to sue over silly things when you pry the DNA chip out of my brain!

Hey, I'm heading for Burning Man, what do you expect ... poetry? I may be a member of the Artists Republic of Fremont and do the Fremont Colonial Expeditionary Passport Office, but I've got stuff to pack ...

Re:Possible use vs. Intended use

[jafac]

whoa! dumbshit! Where have you been for the past year, Cuba? The 1992 American Home Recording Act specifically permits the copying and distribution of copyrighted works for noncommercial use - therefore, your whole argument about Napster being *intended* to be used to make illegal copies of music is FALSE, because these copies are legal. Let me guess, you took the BLUE pill, right?

if it ain't broke, then fix it 'till it is!

Re:About time...

[StenD]

His position was that if it is mostly used for bad, then it should be outlawed.

He's being more generous than many these days. The current standard seems to be that if any one uses something wrongly, then it should be banned. After all, it's for the children.

RIAA stoopid beyond belief

[redelm]

I am not now, nor have I ever been a Napster user :) I simply have no interest and limited bandwidth.

But I think the RIAA is being incredibly short-sighted. I will buy CDs if I think they have one very good song, or if they have a few good songs. But I cannot find them!

The typical scenario goes like this: I hear a song on the radio, like it and try to catch artist/title ident. Most of the time I only get part. Then I go to a CD seller, and try to find it. These days, they don't know. So I don't buy.

I won't buy a CD because it just might be the one. Been there--done that. Especially not as a gift! I would be better off forgetting my wife's birthday!

What I want is at least some thumbnails. I don't need stereo, I don't need the whole song, and I don't need high quality sound. I just want a clue! In fact, short, mono low-quality sound is better because it takes less bandwidth. Otherwise, I cannot buy.

Now some smart record execs will figure out that promotion is one of the main bottlenecks in their business. Radio airplay is precious. So why not augment that with internet play/MP3 swapping? A really smart exec would open his catalog on his website. Perhaps [s]he might limit the quality to FM level to avoid cannibalizing sales, and to speed downloads.

As for Napster, if taping FM from the air is "fair use", and Napster quality is FM, then it's very hard to argue that Napster isn't fair use.

-- Robert

AOL

[Mike_K]

Doesn't AOL own Time-Warner?

m

Re:It's About Time . . .

[dirk]

That's not how I read it. Some documents on the web may be perfectly legal distrbute yes, but there are mp3's that are legally distributed on napster too. Now what if someone put a copyrighted book on the web? (an act which is illegal by current copyright laws) When the search engines come and index this page containing the book they will then have links to copyrighted material, exacly the same as napster does! It is just that one indexes MP3's instead of HTML, besides that they are doing almost the exact same thing!

The difference is that Napster was designed for searching for illegal files, where as web search engines were not. That is what the whole law suit is about. Napster never tried to be a common carrier until they were sued. They advertised that you wouldn't find no name bands, only the biggest names (which would mean copyrighted MP3s). Napster is a tool designed to be used to find copyrighted MP3s, which is why it is in a different category from ISPs. They tried to get common carrier status and were denied.

Even MP3s of your _own_ work can be illegal.

[yerricde]

Even if you own the copyright, distributing MP3 files of your own work can be illegal. OGG files, on the other hand...
<O
( \
XGNOME vs. KDE: the game!

Re:RIAA vs Napster: others join the fray

[Rader]

yea but I'm not buying any more CD's.

Sure, I'm only one person, but so are you.

There are a lot of you's out there, and there's a lot of me's out there....What does that prove? I don't know. I just know that everytime I hear someone say they buy more CD's because of Napster, I just say honestly to myself that I am buying Zero now because of it. (not napster really, but newsgroups, etc)

Oh, but one thing that has changed for me (for the better) is that I do buy much more Indie stuff than I did. Thanks to finding out which Blues bands I liked, and which Punk bands I love, I now can buy them at Emusic.Com (and do still)

So... my main stream (shit music) buying has gone to nil, but my non-main stream music has gone up 1000%. (Infinite I guess, since I was never allowed by the main stream media to know who was better than britney spears all these years!!!!!!!!!!!!!)

Rader

Re:It's About Time . . .

[mortonda]

Here's a comment from an ISP...

There's one major difference here - napster's primary purpose is to violate copyrights. No? Don't decieve yourself - most files exchanged by napster users is copyrighted material. The "it isn't a perfect copy" argument I've seen around is just bunk. A CD isn't necessarily a perfect copy of the music anyway.

Am I, an ISP, worried about this precedent? No. ISP's, as apposed to napster, primarily serve legitimate and legal needs. Sure, there are a few email that threaten the president, some child porno creeps, but it looks pretty obvious that most use of the Internet falls into legal activity.

OTOH, Napster wouldn't make any money at all if the illegal activity were removed from it's services. This is not a "common carrier" case, it is closer to "aiding and abetting". If you witness a crime but fail to report it, you are liable. Are the creators of napster ignorant of the crimes their software and servers are aiding? doubt it.

Instead of worrying about napster, why don't we worry about finding a way to distribute music easily like this, and provide for the artists at the same time. Those artists that use record labels need to see a reason not to use the record labels. <sarcasm>What a great incentive they have, so far...</sarcasm>

Re:It's About Time . . .

[mortonda]

So on this basis... intent reflects whether or notthe index carrier is guilty of copywrite infringement.

No, I'd place it more as de facto use. Even if you intend to not commit a crime, if you stand back and allow a crime to take place with your full knowledge, then you are aiding and abetting.

Re:Sony's in there

[MrBogus]

IIRC, that was before Sony owned any movie studios.

Re:Sony's in there

[dkoyanagi]

Good point. Remember the story a few days ago regarding Sony Pictures Entertainment Inc. senior VP Steve Heckler's comments regarding Napster.

"The [music] industry will take whatever steps it needs to protect itself and protect its revenue streams. It will not lose that revenue stream, no matter what... Sony is going to take aggressive steps to stop this... We will develop technology that transcends the individual user. We will firewall Napster at source -- we will block it at your cable company, we will block it at your phone company, we will block it at your [Internet-service provider]. We will firewall it at your PC."

Face, meet egg. Egg, this is face.

I wonder...

[invictus]

...how Mr.Heckler (the one who made the fascist comment about how Sony was going to 'firewall Napster at every point imaginable') feels about his company helping to support Napster in the case to shut it down. It makes you think... On the other hand it also shows how fractured this issue really is. Personally I hope that they somehow manage to get the supreme court to acknowledge the fact that the DMCA is unconstitutional.

Of course, thats just my opinion, i could be wrong.

IMHO

[ackthpt]

Napster made RIAA's case for them, simply by behaving badly and stupidly [In your face, RIAA!/1st amendment!/We didn't mean to hurt Lars Ulrich *sniffle*] If they had seized some moral highground (using the Betamax standard) earlier, this should have been over and done with.

The pity is watching all these industry heavyweights weigh in to defend the position which benefits Napster and, should they succeed, Shawn Fanning will profit.

BTW, Doesn't anyone else find it ironic that Sony benefited from Universal v. Sony and is a plaintiff v. Napster? ;-)

Vote Naked 2000

Sony vs. Sony

[VP]

Sound like a movie... The only question is, will Dustin Hoffman play Heckler, or one of the guys supporting the amicus brief?

Re:hmmm.....

[sconeu]

Why is it that people take the path of least resistence?

That's the whole point. RIAA saw Napster as the easiest target to win a suit in, and thereby establish case precedent. Then they could go after the bigger fish, and use the ruling in RIAA v. Napster in their court filings.

Where's the brief?

[DzugZug]

Does anyone have the actual brief? I didnt see it linked to from the article. Openlaw's DVD amicus curie brief was posted. Someone should post the actual brief.

Requirements for contributory/vicarious infringemt

[Tackhead]

OK, let's play Devil's Advocate here.

Yeah, I think the Betamax standard should apply here too. But let's assume it doesn't - and that the relevant precedent is the "swap meet" (Fonovisa) case cited here:

Of flea markets and file swapping

What would this mean?

Well, it'd suck to be Napster, as Napster's getting a commercial benefit (in terms of banner impressions and a database of requested downloads for marketing resale purposes) in exchange for running a "flea market" at which infringing materials are traded.

But what if the next Napster to be sued wasn't making a red cent off it? What if the "flea market" RIAA's trying to sue is being run by no one, and makes no money? What if there were no central server maintainers to sue?

What if there was no financial benefit to be had by anyone? IANAL, but would this not blow a WW-II-mine-sized hole in the Kursk of RIAA's "Napster Bad 'cuz Napster do contributory and vicarious infringement!" argument?

Wouldn't Patel's decision to apply the Fonivsa standard (as opposed to the Betamax standard), while nuking Napster, be a colossal foot-bullet for RIAA and MPAA, on the grounds that it might legitimize non-commercial file-sharing applications like Gnutella and Freenet?

And dare I say, USENET and FTP?

RIAA vs Napster: others join the fray

[Paksin]

If you can get a sane judge, most likely it will play out like the betamax case. Somehow, given this judge's previous decisions - I got to say this - she's bias. I know - how can I make such a statement, quite simply, I don't think she knows what is at stake here. Whether she has been overwhelmed by the incessant whining of the RIAA, or she believes that this only deals with "piracy"- as the RIAA see it, I don't think she gets it *(excuse the redundancy). I don't kniow about you but, I'm certainly buying more music. If The RIAA would ask a simple question to Napster Users: Now that your're sampling a greater variety of music are you buying more cd's? Most likely the answer will be yes. Compare the sales figures before MP3 and afterwards. The internet is an amazing thing. We can now assimilate an amazing amount of information. With greater speed we can discard the wack shit from the good... Oh, this must be what they're afraid of.

Re:They Aren't Fighting the DMCA, they are pro-DMC

[Rader]

oh don't worry, it's money well "SPENT".

Publically announced charity...that's hardly giving away the money. That's buying fame, popularity, not to mention a great tax break.

Didn't some of the money go towards Cancer research? Betcha he'll get it some day, and have been cured from his own research money.

Yep... not a bad investment if you ask me.

Rader

Re:Sony's in there

[barracg8]

Hey, leave Sony alone.

It's not easy being a massive corparation, which wants to control not only the content that people receive, the means of distibution, and also maintain a monopoly over the hardware they recieve it on.

Give 'em a break, eh?

Re:hehe, that's funny

[Wah]

I don't see where the difference is, are you saying:

we should be able to transfer music digitally to our friends over icq
Yes, or any other form of digital sharing.

but not be able to copy tapes and give them to our friends in person?
No, you should be able to do so if you wish.
--

Re:About Time

[pained-butt]

It's about peer peer file-sharing. Me - Tarzan, you - Jane. You show me what you've got, and I'll show you mine. An age-old opportunity that no byte-blooded user can ignore. For me, Napster, and others like it will multiply and prosper. Enforce all the laws that you will, but the peers still have their cake, and getting pretty fat, eating it. . . Just show the peers a diet that actually works, and they will find even more files to eat... Both sides should look for a non-confrontational solution keeping the users in mind.

Re:It's About Time . . .

[jms]

Napster indexes copyrighted works which are illegally shared.

Not according to the appeals court that threw out the Napster injunction. The appeals court found:

The court reached its conclusion that Napster users were engaged in direct infringement in part because:

o it ruled (contrary to the section's express terms) that the immunity from suit provided by 17 USC 1008 only applied to actions under the AHRA.

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.

17 U.S.C. 1008 Prohibition on certain infringement actions.

No action may be brought under this title[Title 17, copyright law] 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.

Since Napster's users are not infringing copyright when they share their files, Napster is not contributory infringement. There's no such thing as contributing to a crime when no crime has taken place!

The RIAA may not like it, but file sharing of music is absolutely legal, so long as it is non-commercial. Why? In 1992, in exchange for a royalty on all digital audio media (a surcharge on audio CDRs and digital recorders that has been collected for 8 years now and paid directly to the RIAA), Congress legalized all non-commercial copying of musical works. Bet you didn't know that. Well, the RIAA hasn't exactly been jumping up and down telling you about it.

As I've said before, if you want to know your rights, read the law yourself. Don't take the RIAA's word for it -- they will say anything -- they will tell any lie to suppress the knowledge of your right to share music.

(OT) Did anyone notice this link?

[Talonius]

http://www.mp3licensing.com/other/index.html

Sorry, don't do HTML in posts because I don't do anything but screw it up.

Anyway, this is a link where Fraunhoffer is claiming patents against other formats. (There's only 3 there, but wait until they get the research arm going.)

Now, if you've clean room engineered an algorithm from scratch, does a patent hold water? If so, why? I mean besides the different arguments about compression is compression and compression theory is compression theory? So if any of these formats were clean room engineered, do they have a claim?

I think Thomson and Fraunhoffer are getting *way* too greedy here, similar to the whole GIF fiasco. Solution is to move to another format. (I'm not pushing OGG. :P I'm pushing AN ALTERNATIVE.)

Anyway..

-- Talonius

Re:It's About Time . . .

[Cylix]

So on this basis... intent reflects whether or not
the index carrier is guilty of copywrite
infringement.

As long as I create a file sharing utility and
make clear that I do not wish this to be used
for illegal activities then my product has a
sound legal defense. I could very well create
something such as napster after it has been
washed out by the courts and make my "good
intentions" known. I wonder how long before the
mp3 community embraces my application and its
"good intentions" and sound legal defense.

I am not dismissing the concept that a ruling
could be made on the intentions of the designers.
These are very weak grounds to make such decisions. We need a very clear cut sense of what
is right and what is wrong to do.

Currently, the weight of copywrite infringement
lies on the shoulders of the individual who
distributes those items.

We are afraid that this may change, and if this
change occurs it will effect far more then
some kid downloading mp3's.

Re:freedom

[NaughtyEddie]

Yup, let's solve the music issue later. Oops. Too late. A bunch of idiots have already gone all out over the internet saying that they have a right to copy music and that no-one can stop them. Now the people they dared to stop them are doing so. The result? No freedom on the internet.

Welcome to a world of our own making.

This is an excellent sign . . .

[werdna]

The Ninth Circuit will not soon forget (and Mr. Boies went to great length in his brief to remind them) that the last time they ruled in favor of an IP provider (the Sony Betamax case) using a standard along the lines of a "most frequent present use" test, the Supreme Court spanked them, noting that the standard was that the product "merely be capable of a substantial non-infringing use."

The problem is that the Napster defense is a primarily hypertechnical one, albeit an important one, that does not appeal to the "hearts" of the judiciary. The benefit of having amicus briefs filed on behalf of defendants from enterprises raises more important policy issues -- which will go far to give the three-judge panel a more balanced and critical view of the respective positions of the parties.

Then, hopefully, they will re-read Sony, avoid remaking the mistake they made a dozen or so years ago when they last took on a contributory infringement case of this kind, apply the appropriate rule, and reverse.

Why is Napster so important?

[Miniluv]

I hate to say it people...but Napster is a case about many things, some of which are rather absurd..why are AT&T and the like getting involved in this but sitting idly by when travesties of justice like 2600/DeCSS are happening???

Why is no one recognizing the far broader threat that DeCSS being ruled illegal is to freedom compared to what narrowly viewed is our right to trade music illegally?

I would rather have to follow copyright laws but write whatever code I want than the reverse.

Re:They Aren't Fighting the DMCA, they are pro-DMC

[fenix down]

I think it's less buying fame and more "Holy s**t! I have more money than God! I could burn $100 million a year for the rest of my life and not make a dent in it!" That and buying immortality, but I think he gave all the nano/biotech guys enough money to get first dibs on anything they come up with already.

freedom

[wishus]

what really matters is freedom of the internet - i don't care so much what happens to napster, but i care alot about laws and regulation of the internet. we need to stand together on this one. we can solve the music issue later. right now we need to keep free speech on the internet. kindof like what this guy was saying.

wish
Vote for freedom!
---

Re:freedom

[CPT Carl]

I am personally glad that the service providers chimed in on this one. Its not good for the freedom of the Internet if ISPs are held accountable for the content, links, and clicks of the users traversing their system. What are we going to shutdown the Internet by suing ISPs for providing acces to newsgroups, websites, and chat sessions?

CPT Carl

Re:freedom

[Eso]

They (the rhetorical "The Man") can shut down Napster. They can shut down DeCSS. They can shut down our ISPs. It doesn't matter. Try as they might, they can't stop progress.

Re:freedom

[ndogg]

They can't and won't because the entire Internet industry is about 3-4 times bigger than them and Sony will be locked into an internal corporate civil war because there are about a hundred different divisions working independantly of each other, something of which has happened to them before.

Wakup call

[WyldOne]

Looks like finally other industries are finally jumping into the battle against the MPIA and RIAA against teh DCMA.

It's About Time . . .

[Luminous]

All through this Napster trial, I have been wondering where all the ISP's were. Whether you like Napster or not, their essential model is dangerously close to the ISP's.

Again, I know there are people who are strong opponents and proponents of Napster(inc) and Napster(idea) and then there are those of us in the middle who have one concern: making sure whatever precedent this case sets is a fair and equitable one. I believed the ISP's should also be very interested in this outcome.

I am glad to see they are breaking their silence.

Re:It's About Time . . .

[Cylix]

Not necessarily.

It is possible to witness a crime and be helpless
against stopping those actions that took place.
I myself would not step in and interupt a robbery.

Life isn't as simple as this unfortunately. Technology doesn't allow for life to be so
grand and simplistic.

Imagine any search engine attempting to not
index illegal materials. What type of algorithm
do you come up with to do such things. Remember
the anti-pornography image viewer thingie (posted
on slashdot previously). You would run into
problems of this software not being able to
completely distinguish between what you want to
filter and what you want to pass through.

Technically napster has taken steps to stop
piracy. Recall metallica reported a number
of individuals distributing thier content
through the napster medium. Napster responded
by blocking those accounts.

We cannot say they have taken no steps. You
could possibly argue that these steps are not
sufficient, but what is...and how do you
implement those changes effectivly?

Honestly, I don't really support what napster
is doing. Rarely does the medium support
non-copywrited material. However, that is my
opinion and the burden of copywrite protection
does lay upon the shoulders of the distributer.
It is a very weak case to argue intentions.
It is difficult to implement changes that
would filter copywrited material while retaining
the same service they currently offer.

Still yet, is it required that napster police
its users?

For now, the degree to which napster must police
its users is very limited.

Perhaps everyone should be liable for indexing
illegal activities. Perhaps the automation
and scale technology has brought us does not
include a "get out of jail free" pass.

Re:It's About Time . . .

[lambda]

Napster gets in trouble because they aren't a common carrier, they are a search engine for mp3s. There is no reasonable way that the decision could be applied to ISPs.

Re:It's About Time . . .

[jms]

Well, some of us thought that there was no reasonable way that this decision could apply to a search engine.

After all, nearly every web page on the internet was automatically granted copyright when it was written. How many search engines obtain the permission of the copyright holder before they index a web page?

None?

Then gosh, if Napster can be shut down for indexing copyrighted works, why not Google? Altavista?

Re:It's About Time . . .

[mini me]

That's not how I read it. Some documents on the web may be perfectly legal distrbute yes, but there are mp3's that are legally distributed on napster too. Now what if someone put a copyrighted book on the web? (an act which is illegal by current copyright laws) When the search engines come and index this page containing the book they will then have links to copyrighted material, exacly the same as napster does! It is just that one indexes MP3's instead of HTML, besides that they are doing almost the exact same thing!

Re:It's About Time . . .

[Rader]

no, you're missing their point.

Napster indexes copyrighted works which are illegally shared, -- yes.

Web search engines index legal web-based content, -- no.

These search engines don't know for sure that they're linking (and indexing) to legal sites. Most sites are, some aren't. Heck, I could have a secret web site I don't even register with a search engine, and it can still show up due to spiders that find me through other site's links to me.

Search engines point to web sites. These web sites could easily could hold mp3 files. Kiddie porn, warez, etc. Everytime one of these individual sites get knocked down it's because the pursuers went after the individual web sites.

If Napster gets shut down, then it's only half a stone's throw away to shut down yahoo because when you type in "Metallica MP3", you get a huge list back of web sites that may or may not still hold metallica.mp3 files!

Yes, logically you and I can make a big list of why napster is different than yahoo. However, once law is made, it's just another bullet to the RIAA to use against you and me. The RIAA is not logical, and will not come up with the same conclusion you and I came up with. They're evil and will sue anyone that gets in their monetary way. They will bend the law to jump to the next law. *They* will say that Napster and Yahoo are very similar.

Rader

Re:It's About Time . . .

[Luminous]

they are quite concerned that the ruling in the Napster case could be applied much more broadly against isps in general.

All I can say is the ISP's and their lawyers seem to believe differently than you, which is why they filed these papers.

Nothing is cut and dry...cases like this can't be used as justification for other lawsuits. I'm not saying Napster is guilty or innocent, I am just saying it is in the best interest of ISP's to make sure the court doesn't make a ruling so broad that it opens up avenues of other lawsuits.

Sony's in there

[Fervent]

What I found interesting was that one of the members of the CEA was Sony Electronics. Can you imagine the civil war that might boil up?

CNET has a good article here.

Re:Sony's in there

[interiot]

That was also true of the Betamax case that this case is using as a precident. Sony made the recorders and were sued for contributing to copyright infringement.

Re:Sony's in there

[Misch]

Good point... isn't Sony also manufacturing portable MP3 players?

Bad law

[www.sorehands.com]

Sometimes courts ignore bad caselaw.

It's not aften that they call it bad law, but they argue that it does not apply in the specific case.

But bad precedent is bad. It's better to avoid then to have to fight it.

Once again, Lessig was on the ball

[andyo]

It's too bad the Standard article didn't mention Lawrence Lessig's testimony from a couple months ago that aired the same point about "non-infringing uses" plus two other good points.

Save Napster by Massive Non-Infringing Use!

[namespan]

Like VCRs--which a court has ruled are legal despite being able to copy protected movies--Napster also is capable of "substantial non-infringing use," the company argued.

Patel dismissed this argument, saying that Napster's internal documents show that the company had created the software largely to facilitate piracy and that company executives knew the piracy was happening on a massive scale.

If this last part is true (and who doesn't think that it really is), it's really hard to defend Napster. It's _true_ that their product has substantial non-infringing use. It's also true that it's mainly being used for infringement. The same is not true for the internet. So, want to save Napster? Start using it for large amounts of legitimate traffic! See if you can route all your downloading somehow through Napster! Maybe we can even route HTTP requests through Napster. With all the legitimate traffic, they'll have to admit it's A-OK. (Of course, there'd still be those meddlesome internal documents about facilitating piracy to deal with....)

P2P apps will have big benefits

[DreamingReal]

And if new technology is outlawed on the basis of its possible disreputable use, it's potential good will be blithely overlooked.

Very true, especially for P2P applications. Unfortunately, most of the media coverage has focused on the complaints of the entertainment industry. They portray apps like Freenet and Gnutella as a larger threat than Napster and the end of entertainment.

However, the potential good is being overlooked. To say nothing of all the unfathomable uses that may arise in the next few years, at the very least, they will offer an alternative to file-sharing via email. I remember reading an story a while back that said email has become the predominant means of file-sharing. Unfortunately, that also gave rise to Melissa, I LOVE YOU, and other viruses spread through attachments. P2P apps could eliminate those for the most part.

I don't think these apps will be seen in a favorable light until people begin to show some restraint w/ copyrighted material. Want to share your BSB mp3s with a couple of friends? Cool. Just don't offer it up to the entire 'Net. It's good that some companies are seeing the immense benefit these technologies will have once the furor over IP settles.

-------

Umm

[2nd Post!]

Napster indexes copyrighted works which are illegally shared. That's a little different from indexing legal web-based content.

Well, Napster indexes mp3s. Whether they are copyrighted or not is *independent of that*.

Indexing mp3s is not illegal, any more than Altavista indexing books on Amazon or something.

That there are copyrighted works is not arguable; they exist. That they are shared illegally, that is arguable. What's illegal about sharing a copyrighted work? Distributing it may be illegal, but not listening to it, not downloading it, etc. Fair use, and all, right?

And about web based content? Assume *everything* on the web is copyrighted; pictures belong to people, text belong to writers, movies belong to creators. How is that different than mp3s?

The nick is a joke! Really!

Possible use vs. Intended use

[cperciva]

And if new technology is outlawed on the basis of its possible disreputable use, it's potential good will be blithely overlooked.

The Napster case is not about how Napster *can* be used to make illegal copies of music, it is about how Napster was *intended* to be used to make illegal copies of music.

I don't see anything wrong with setting a precedent which says that you cannot provide a service specifically intended for the sole purpose of aiding people in committing a crime. Would even the most rabid gun lobbyists support the sale of a gun whose manufacturer advertises is "perfect for holding up banks"?

Re:Possible use vs. Intended use

[jellicle]

You need to review the copyright laws passed in the last five years.

--
Michael Sims-michael at slashdot.org

Re:Possible use vs. Intended use

[SmellMyTeenSpirit]

You always hear the RIAA saying that napster intended to br used to make illegal copies of music. Uh, no. Napster is intended to be used to make free copies of music. They just happen to be illegal. Though i have been hearing that they arent...

Re:Possible use vs. Intended use

[mistah_monkey]

Ummm... Copyright violation is a tort, not a crime. There's a big difference.

Are MP3's Illegal? That has not been decided...

[MO!]

You are correct, in that the judge did not "outlaw Napster". However, MP3's are not outlawed either, whether the songs are copyrighted or not (although technically every piece of music is copyrighted by it's author by default unless the rights are explicitly transferred).

Since MP3's are lossy copies of the original work, they are not "exact duplicates", which if distributed for commercial gain would be Illegal. The complaint the RIAA has is that they are better than broadcast radio, cassette recordings, etc. So they use the term "near perfect copies" to imply they are also a violation of copyright. There is no such thing as "near perfect"! They are either perfect, or not. Since they are not, and additionally not being distributed for commercial gain, then they are not Illegal material.

Darwinism

[TheFlu]

My friends, the entire situation, and by situation, I am specifying not only Napster, but the entire Internet infrastructure and more specifically the dominating force of computers and technology in modern human lives; this situation is really no different than other dramatic changes that civilization and society in particular have endured over the past several thousand years.

I'm just going to come right out and make this statement: environments change and many times we (individually or as a collective) have no control over these evolving forces. We now find ourselves at one of these crossroads in our history as human beings. It is at times like these that we must adapt ourselves to our new environment and make the necessary changes to our lives and laws so as not to stiffle human creation, technological advancement and the wonderful human characteristic known as "imagination".

The following is probably one of the poorest examples that I could possibly come up with, nevertheless it's still valid. When electricity was "discovered", it had the effect of dramatically altering the lives of millions of people, not unlike the way the Internet has changed peoples lives. Candles weren't needed near the quantities that they had been prior to the lightbuld, and so I'm sure that a number of candle makers and companies in industries that were tied one way or another to making candles had to fire quite a few people, or perhaps went out of business alltogether. These companies needed to adapt to a new way of business or be forced to close. Clearly lightbulbs and electricty were a more powerful system than what was previously used (candles and lamps with lamp oil). The good news was that employees were then needed in the factories that manufacture lightbulds which surely must have offset the loss of jobs that occured from candle factory layoffs.

The above is only one example of many that flew through my head as I wrote this. I'm sure that you personally can easily think up changes in ecomony and lifestyles that have occured in the past as well.

My views are probably more liberal than most in regards to intellectual property, and I won't dwell on that here, but clearly we have come to a point in history where drastic changes to laws and views about intellectual property need to be adapted.

It's only natural that we as humans adapt to our changing environment just as we have done for millions of years and that is all I am suggesting. Let's make concious, informed and logical decisions to allow progress of the human race while not trying to brush under the carpet something that a few people in power find "threating". Let's do what's good for the majority, even at the expense of the few.

Re:a fine line

[Pink Daisy]

So have I many mp3's which I will never buy the cd's. Without Napster I wouldn't. But practically, I can't be held responsible because there are a million people with just as many or more. I'd love to be held accountable (well... I wouldn't do it if I was, anyway), but that isn't really an option. On the other hand, Napster built this infrastructure for the sole purpose of copyright violations. Surely there's no justice in that either. There must be some way to stop this without overloading everyone's moral operators. It will just take a lot of finesse in the laws, which is what I guess I have to look for now. As for websites and ftp and whatnot, yeah, I can use that to, but the point is I didn't, because they were too inconvenient for mp3's for someone who doesn't care, like me.

You don't appear to understand the applicable law

[werdna]

The argument about the Betamax standard is irrelevant because the judge did not outlaw Napster.

Nothing could be further from the truth, legally speaking. The Betamax standard here is EVERYTHING -- the single strongest legal reed upon which Napster has relied.

The issue here is not whether a given person infringes when he or she obtains a free copy of a work he or she has never purchased is infringing. In that situation, it is highly likely that the conduct *IS* infringing.

The point is whether Napster can be held liable for that infringement under a theory of contribution, given that Napster itself never directly violated anybody's copyright -- it neither reproduces nor distributes anything protected under the Copyright Act.

And the standard for determining whether a person can be contributorily liable when there exists an actual infringement is not solely based upon whether there was an actual infringement, but whether the alleged contributor contributed something that could ONLY be used for infringing.

Under Sony, if the Napster is "merely capable of substantial noninfringing use," Napster must prevail -- even if most of the users are, in fact, actually infringing at the time of trial.

Far from irrelevant, the Sony case will probably tbe he most significant issue on appeal.

hehe, that's funny

[Wah]

The copyright coalition was formed during the drafting of the Digital Millennium Copyright Act of 1998, in which Congress updated copyright laws to make them more relevant to digital media.

shouldn't that read...

...in which Congress updated copyright laws to make them totally irrelevant to digital media. (i.e. treating digital recordings like physical recordings)
--

a fine line

[Pink Daisy]

I am strongly of the opinion that Napster should be held accountable for copyright infringement on their system, so I applauded the initial ruling, but in light of this, I'm not so sure. Looking at what they say, the ruling does seem pretty draconian. There is a big difference between a system whose primary purpose is copyright infringement like Napster, and one where copyright infringement is possible, like almost any information sharing system, and shutting down anything with the capability to share files would be a huge mistake. I guess the lesson is we have to be very careful when making rules, because they can serve a lot more than the intended purpose. I really hope the final ruling takes this into account, because even though I agree with them in this case, I doubt the RIAA will show restraint or discretion in attacking other technologies where their wrath is harmful and unjustified.

Re:a fine line

[Anonymous Coward]

Why do you think napster should be held liable for copywrite infringement when I'm the one committing the act ? Yes, Last night I downloaded many mp3's that are copywrited works and I have no plans on buying their albums for quite some time (As the cd's are far overpriced)... Dont blame napster, Blame me ! I'm the one committing illegal acts. Napster has only provided the user with a more efficient transport for committing these acts. Everybody could use http, ftp, dcc, etc to do the same thing as napster does, but its not as convienent.

About time...

[chuckw]

Ahhhh, a clueful response to this. Seems that it isn't cut and dried at all. I had a argument about this at work with a guy who couldn't get the betamax standard through his head. His position was that if it is mostly used for bad, then it should be outlawed. I tried in vain to convince him that that wasn't how this country works. There's even an ammendment to that affect, "If it isn't specifically outlawed, then it is legal by default". Don't kill the medium, prosecute the perpetrators.

Unfortunately, for us, it's easier to kill the medium than it is to go after the law breakers.
--
*Condense fact from the vapor of nuance*
25: ten.knilrevlis@wkcuhc

About Time

[Kondoor]

I have been wondering when companies with a large web presence, and with interest in online data sharing, and distribution were going to pipe in on this. This is a very far reaching precident that will be made if napster is shutdown for good. The artice mentions the BetaMax precident and I believe this case will have an equal amount of meaning for the future. The big picture of this case is not just pirating music, its about file sharing over the internet and wether it will be allowed in the future.

They sue money, not people

[daghlian]

The reason this is done is that the person at fault (pirate, drive-thru clerk, junkie mugger) doesn't have any money. If, for example, Acme went and sued me for making illegal knock-off widgets, they'd find that I won't pay (I'm in the Bahamas or something) but the publisher of the advertising flier I used to solicit business is rich and local.

Stones yield no blood when squeezed.

They Aren't Fighting the DMCA, they are pro-DMCA

[Carnage4Life]

Napster's primary defence in this case has always been the service provider provision of the DMCA as has been reported on slashdot earlier. This provision exclusively limits the liability of service providers if illegal activities are carried out on their network.

If this case eventually causes that provision of the DMCA to be revoked or weakened via judicial review this will spell dire consequences for ISPs and other service providers, even messageboards (e.g. Slashdot) and USENET may not be safe.


Hanlon's Razor

But wait....

[mistah_monkey]

Bands don't make big cash money off of record sales. They make the big bucks off of concert ticket prices. I still fail to see what the difference is between taping a CD on to a cassette or DAT, and trading those between friends, and making mp3s and trading them with your new friends on the net.

If the RIAA were smart, they'd make a deal with Napster et al. NOW rather than wait for a true p2p app that eliminates any need for a Napster-like server...

AFAICS, this is what Napster is refusing to do

[RedLaggedTeut]

As I understand it, Napster is refusing to install any kind of mechanism (as req. by RIAA) for report ( and, possibly, detecting ) of [copyright] infringements and the subsequent removal/blocking of such material. To me, this essentially means Napster understands itself as a vehicle to distribute copyrighted without paying. The unsettling thing is that Napster can make case law this way, and later judges may not be alert enough to pick out the difference in operation of another internet music mall operating by The Law. Summary: Napster spoils it for you.

Re:AFAICS, this is what Napster is refusing to do

[jareds]

As I understand it, Napster is refusing to install any kind of mechanism (as req. by RIAA) for report ( and, possibly, detecting ) of [copyright] infringements and the subsequent removal/blocking of such material. To me, this essentially means Napster understands itself as a vehicle to distribute copyrighted without paying. The unsettling thing is that Napster can make case law this way, and later judges may not be alert enough to pick out the difference in operation of another internet music mall operating by The Law. Summary: Napster spoils it for you.

Huh? Neither of those two provisions in the law required the ISP (Napster) to report or detect copyright infringement. They only allowed them to be ordered to block access to an identified user, or to a specific online location outside the US. This is what Napster did when they disabled the accounts of the 300,000 users specifically identified by Metallica. No provision of the law requires them to actively find infringing users. All they must do is terminate the accounts of users reported as infringing.

Ugh .. You mean the GOOD parts helped it through ?

[RedLaggedTeut]

-nt

No hard drives?

[gwalla]

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.

A friend of mine has a music sampler, and guess what it uses to store samples long-term? A SCSI hard drive! So taking full advantage of this piece of equipment is technically against the law.

(Technically, it doesn't have a hard drive built in but only a SCSI connector. However, if it does not have a hard drive attached it can only store samples until it's turned off. The next time you want to use the same samples, you have to play back the original CDs and find the samples again...a pain in the butt if you're doing any real mixing, and unacceptable if you want to do anything live.)

---
Zardoz has spoken!

(OT) Gates' and ESR's charitable giving

[jareds]

FOOD FOR THOUGHT
Bill Gates has donated $22 billion to charity while ESR said no to doing so after the VA Linux IPO

You mean ESR said no immediately following the IPO? I'd hope so. As a director (IIRC) he can't sell his shares for six months, and he had no guarantee they'd still be worth anything. They did, in fact, decrease about five-fold in price from the post-IPO value. Do you actually have any information on whether he has given to charity since he became able to touch the money, or are you just spreading FUD?

actually i find that ISPs use the exact same model

[kel-tor]

consider what an ISP, or a search engine provide. Oversimpliphied, it is access and search capability to find information from a huge database called the internet. Each page your browser finds has and automatic copyright granted (as a written work), and the first thing you do to view it is to download a copy. Only after opening and viewing the 'copy' can you know for sure that you have been given the authority to view the page (it's implied that you have been given this right by the nature of it being posted on the internet, but consider a webpage that once you downloaded and opened to view in your browser, specifically states that copying of the page is infringement, etc blah bleh). Maybe the judge if right, maybe if we bury our heads in the sand and newfangled technology will just go away-- it worked for the guilds fighting against the industrial revolution, it worked during alcohol prohibition, it currently works for the 1929 Marijuana tax (not a prohibition, cause that was repealed;--). We can fight against progress. We can continue to live our lives not making the world a better place and giving investment clubs (corporations) their fair (fair or all the market will bear?) compensation. Consumers must want to shell out big bucks for things that could as easily be free (or pennies). And cars need to get bad gas milage and break down alot so we dont hurt texaco investors pocket books, or drive the repair industry out of business.

This message sponsored by the campaign to save Corporations from rampant freedom

Nobody is supporting or condemning Napster ...

[DigitalDreg]

They are just trying to make sure that people who participate in infringing behavior are held liable, not the technology.

Peer-to-Peer is not illegal; it has been around for a while. Directories are not illegal either. Ripping people off is illegal.

Whether Napster is facilitating the rip-off or whether people are making "fair use" of the music is an entirely different issue. That is what these groups are trying to make clear.

Human Nature

[AdamHaun]

Whether for better or for worse(and IMHO it's worse), people often see taking responsibility for their actions as some form of admitting defeat. Think about it: how many flame wars do you see that go something like this:

Flamer1: Product X has foo. Therefore it rules!
Flamer2: But foo has problems with bar!
Flamer1: You suck!

The key is that the flamer cannot handle being *wrong*. If we look back at the hunter-gatherer tribes of ten thousand years ago[1], such an admission of wrongness could quite possibly result in an alpha male being pulled down by some ambitious member of the pack(the same holds for animals--make a mistake and you pay). Of course, more intelligent people will realize that you can only truly correct a mistake when you admit a mistake has been made. Then again, human nature usually doesn't go down without a fight.

Unfortunately, there has been little effort in our culture as of late to really embed personal responsibility into society. I hope this changes soon; we'll all be better off for it.

[1]: You can understand a great deal about human nature by looking at how various characteristics fits into the lifestyle of a hunter-gatherer tribesman of ten thousand years ago. Humans haven't evolved that much :)

Napster IS TOO a 'service'

[SethJohnson]

Napster is a file transfer service. It is the functional equivalent to portal websites that allow visitors to search their indexes of html docs stored on computers scattered around the world. As a service provider, the portal website search engines bear no responsibility to police these third-party servers to ensure that copyright laws aren't being violated. There have been precedents set that absolve the service providers from responsibility of the content sent through their pipes. To police this content would make it impossible to provide the service in the first place.

The responsible parties are the people running the servers where the illicit material is stored. If this is on a home computer running a server app (webstar, netprezens, napster, etc.), then that person can be prosecuted for piracy. The ISP providing service to that individual may be notified and their account may be terminated according to the DMCA, but the ISP is not held accountable. The reason AT&T et. al are involved is that they don't want to see this case undermine the current precedents that govern their operations.

Seth

I read a bit of advice in an old book.

[Nanookanano]

It said, 'settle you differences before you go to court, for if you go to court neither of you will get what you want'. You are very right that a lack of personal responsibility is the fad today, but it will swing back, eventually.