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.

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.

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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

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: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.

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.

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!
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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.

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

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