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

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

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.

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 :)