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

[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.

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...

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!

[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

[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.

--

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: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.

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!

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

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?

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: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.

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.

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

[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.

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.

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.

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.

-------

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

[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.

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)
--

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

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...

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!

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