Napster Court Date Set For October 2

DaHat writes: "According to Maximumpc.com the trial of Napster vs the RIAA is set for October 2nd, or at least round 1 of it." And just so we're clear on terms, DaHat points out that the MPC story goes on: "The RIAA has even been so kind as to educate the masses on the different terms used for illegal distribution - From the RIAA Web-site: 1. Pirate recordings are the unauthorized duplication of only the sound of legitimate recordings, as opposed to all the packaging, i.e. the original art, label, title, sequencing, combination of titles etc. 2. Counterfeit recordings are unauthorized recordings of the prerecorded sound as well as the unauthorized duplication of original artwork, label, trademark and packaging. 3. Bootleg recordings (or underground recordings) are the unauthorized recordings of a live concert, or a musical broadcast on radio or television. 4. Online piracy is the unauthorized uploading of a copyrighted sound recording and making it available to the public, or downloading a sound recording from an Internet site, even if the recording isn't resold. Online piracy may now also include certain uses of 'streaming' technologies from the Internet."

Comments

Work Boycott

[geekd]

Lets have a "work boycott" of the RIAA and the MPAA.

No geeks take any jobs with any member company of either group.

If they want to be so hostile to us (sueing Napster, Mp3.com, 2600, etc) then lets not work for them.

Let's see how well they do as companies when thier tech level stays mid 1990's.

Re:Work Boycott

[ravi_n]

People are already "work boycotting" the RIAA members (and I'd guess the MPAA members are next, if it hasn't started already). There was an article in the LA Times about this in July. The gist of the article was that the record labels were finding it impossible to fill technical positions, in part because of the image created by their recent legal battles.

Some more definitions...

[SagSaw]

Ripped-Off: An individual forced to pay more for a CD than a casette (even considering any possible differnce in manufacturing cost)

Harassed: Individuals who excercised their right to the free expression on an idea by linking/posting the DeCSS code

Bottom-Feeding Scumsukers: Lawers for the recording and motion-picture industries

label

[CynTHESis]

So if I go to a concert with a recording device, copy the music to an mp3, then post a picture from the record on the site and make the mp3 freely available I would be a bootlegging counterfiting online pirate?

Isn't recording-off-air FAIR USE ?

[redelm]

Am I wrong, or is the RIAA trying to write-out fair use? I had always thought that recording a broadcast off the radio [or TV] for personal, private purposes was considered fair use! Wasn't the Betamax case all about just this?

And now the RIAA is trying to tag FAIR USE with the slur of "Bootleg Recordings". I cry foul.

Changing IP laws

[revscat]

You know, I would really like to see some discussions from IAAL types on what can be done to change IP law so that situations like this do not arise again. IMHO, the economic model which has given rise to the RIAA is outdated. This is not a Katzism, it is simply a fact. Peer-to-peer sharing is here to stay, and without totalitarian rule overseeing every file transfer, it cannot be stopped. This leads to only one conclusion, as far as I can tell: fundamentally changing IP law. This would involve pain, certainly.

The analogy to buggy whip manufacturers in the early days of automobiles is apt here, I think. I fear their lobbying power, however. Should they be vindicated in the halls of Congress, it will be to our collective injury and a further erosion of our liberties in the name of profits and corporate self-interests, which are not, again IMHO, all that important in the long run. Should the members of the RIAA go belly-up five years from now, the economy and the Republic will continue to thrive.

- Rev.

Educate Them! History repeats itself, ask ASCAP

[di'jital]

In 1922, the American Society of Composers, Authors and Publishers (ASCAP) felt gravely threatened by a newfangled technology called 'Radio', which they saw as a threat to their once lucrative profit streams.

Initially, ASCAP threatened to prosecute radio stations for playing their music, but eventually realised that they could not combat the rise of this 'Radio'. Instead they tried to milk it by setting up huge royalty fees (about $5000) to dissuade smaller stations and profit from larger ones.

In 1923 the radio stations banded together to fight ASCAP and formed BMI (Broadcast Music Incorporated) to try and break the monopoly ASCAP held over almost all recorded music.

At the time all the big sellers (the metallicas of this world) were with ASCAP, but BMI signed strange new artists with newfangled sounds like 'Rock n Roll' and 'R&B'. ASCAP arrogantly increased their royalties by 70% to try and kill off radio.

During the depression radio had a boom, and ASCAP brought in the lawsuits, in the infamous Waring case taking a radio station to the supreme court.

Instead of dying, radio thrived as a channel for this Rock n Roll sound, championed by popular personality DJs like Alan Freed and supported by lurative advertising. BMI's artists profited immensley and gained for the first time a huge amount of worldwide attention as their music was broadcast around.

I'll let you guess what happened from there on in. Feel free to draw parallels.

Regulating the Internet...

[sheldon]

I have a feeling that we as a society have been down this path before, and we fail to learn from our history.

Prior to the invention of the movable type printing press, in order to copy a book or other paper it required someone sitting down with a pen and paper and doing it by hand.

Prior to this technology it was very difficult to mass produce literature, and as such books were incredibly rare and expensive.

I guess the point is, the copyright laws were pretty much created to combat the problems the new technology generated. Do you think now that there is new technology that makes it even easier to copy books or music the laws will not be strengthened rather than removed?

It is not unthinkable as we start to flesh out the problems of the Internet that we will see more police involvement. There have been reports of huge problems with pedophilia, identity theft, fraud, breaking into systems, etc. over the years. The Internet is drawing attention to itself, and many people are outraged by the stories they hear.

Your claim that it can't be stopped is rather naive. As our country grew westward in the 19th century we had bad people doing bad things and getting away with it, also thinking that they could not be stopped because the land was so wide and they could hide easily.

That obviously changed as the land became more populated, and tax dollars were spent hiring law enforcement officers.

The Internet will most likely evolve in a similar fashion.

As far as the issue there are with crossing nation borders, those can be dealt with as well by cooperation between police agencies. The same technology that connects citizens can also be used to connect police agencies. Perhaps the need for such enforcement will result in cooperation and a world government.

It's hard to say... There's a whole future ahead of us. There aren't very many people who want to live in a lawless anarchy, and as such our society will adapt to bring order to the chaos, or at least try to.

Re:Regulating the Internet...

[jms]

Here is a superb, although somewhat densely written essay by L. Ray Patterson, Professor of Law at the University of Georgia, detailing the history of copyright from 1556 through the present, with respect to what the phrase "the exclusive Right" in the U.S. Constitution means, and discussing the problems with modern copyright law -- the same problems that are discussed here on a daily basis, but with a historical perspective that is largely missing in these threads.

As Detritus said, Copyright was originally created to promote censorship and create a publishing monopoly. English copyright was perpetual, and only publishers were granted copyright -- not authors. A publisher could take any text he wanted to, even a public domain text, publish it, and claim exclusive copyright. Copyright at this time was completely understood to be a monopoly for the sole benefit of book publishers, and not an instrument of social progress.

In 1664, support for this system waned, and the laws were allowed to expire. To simplify the story, seeking to regain their monopoly, the book publishers tried a new tactic -- promoting copyright instead as an instrument to benefit authors. The resulting 1710 law, the Statute of Anne, was the first copyright law that recognized, in a limited form, the authors of a work as the proper beneficiary of copyright, not the publisher. United States copyright law is based on this principle.

I'm including two somewhat lengthy quotes from the paper, both to encourage people to read it, and because it sheds light on many of the hottest current copyright issues -- the behavior of the MPAA and RIAA in relationship to artists and with respect to copyright on the internet, the DMCA, and the emerging systems of "pay per use" for printed materials -- i.e. digital books that charge you to read them.

The freedom to learn is a natural-law right and the materials of learning are a necessary condition for the exercise of that right. Even if we say copyright has a natural-law basis, the benefit to the author is a reward to induce the author to make his or her writings public so that others may enjoy their natural-law right of learning. Copyright thus is, and can be, only a positive-law concept, for only a positive-law concept can serve to mediate two natural-law rights.

The Copyright Clause makes the point by recognizing the natural-law right of the people to learn as well as the natural-law right of the author to gain a profit. Thus, we come to the fundamental point. Copyright, whatever its basis, cannot co-exist as a natural-law right in a society where learning is a natural-law right and the public domain has a natural-law basis. Therefore, American copyright must be-as the framers intended-a positive-law concept, a legislative grant of limited rights conditioned on the author's making his or her writing available to the public. This principle was acknowledged in the Resolution of the Continental Congress, implied in the Copyright Clause, and adopted by the United States Supreme Court in Wheaton. This is why the copyright statutes do "not provide for the continuation of the common-law [i.e., natural-law] right, but under constitutional authority, created a new [statutory] right." The most important natural-law right of the Copyright Clause is not the right of the author to gain a profit, but the right of the people to learn: The future of a society is determined by the learning of its citizens.

The second quote is a little bit off topic for this thread, but it addresses the question as to what is wrong with laws like the DMCA that grant publishers the right to control the use of copyrighted works after publication:

The separation principle-the copyright and a copy of the work are separate legal entities subject to separate ownership, and both are separate from the work, which can be owned by no one-is a corollary of the limited-grant principle. The Supreme Court's most famous statement of this principle is found in Baker v. Selden,[72] which established the rule that copyright cannot protect ideas, and therefore the copyright is separate from the work. The Supreme Court's most definitive statement of the separation principle was, however, in American Tobacco Co. v. Werckmeister, in which the Court said that it was not the "physical thing created (the copy), but the right of printing, publishing, copying, etc., which is within statutory protection."

The crucial relevance of the separation principle is that no one can own the work. The copyright of a work and a copy of that work can be owned by different persons, and this difference in ownership is the essence of copyright. As the Supreme Court in Werckmeister stated, copyright "grows out of the recognition of the separate ownership of the right of copying from that which inheres in the mere physical control of the thing itself." Thus, the copyright and the copy in which the work is embodied "are distinct subjects of property, each capable of existing and being owned and transferred independent of the other."

The separation principle is thus fundamental to copyright law. The principle tells courts (and copyright owners) to distinguish: (1) the existence of the copy from the existence of the copyright; (2) the ownership of the copy from the ownership of the copyright; and (3) the use of the copy from the use of the copyright. These distinctions flow from the fact that copyright is an instrument to encourage copyright owners to distribute copies of the work in order to promote learning, not an instrument to control use of the copies after they have been distributed.

The publishing industries are attempting, through the DMCA, to reverse 300 years of copyright progress -- to return to copyright as an instrument to enforce publishing monopolies, instead of an instrument to promote learning by providing an incentive for authors to create a public benefit by openly publishing copies of the works they create. Hence the creation of inaccurate, misleading terms like "copyright protection."

Once again, I highly recommend taking the time to read the paper.

- John

Let's work for the artists instead...

[erotus]

...or rather let the artists and the open source community work together to create a an electronic marketplace that does not involve the riaa. I read an interesting article on osopinion.com that really intrigues me. I have posted a few quotes from the article to give you an idea of the possible future. I highly encourage you to read the original article - Here is the link in plain text(I wouldn't want to break any laws):-)

http://www.osopinion.com/Opinions/DavidNimmons/D avidNimmons1.html

Mr. Nimmons basically says open source has the answer. Mr. Nimmons speaks of "a foundation run by musicians for musicians, will exist for the sole purpose of supporting musicians, providing the infrastructure and services presently supplied by the record companies." Secondly, Mr. Nimmons also states "By collaborating with the free software community, the foundation will provide the music community with an electronic marketplace to sell their work and services directly to consumers."

He concludes, "We,the free software community, help the music community establish an electronic marketplace and they pay us a portion of their proceeds to run and maintain the system and also to fund future development of software specific to their needs." I believe this man has an answer to a problem that could be beneficial, both financially and socially, to artists and the open source community. Fellow open source followers, here is our chance to do away with the riaa and to free the artists from the clutches of greedy corporations... let's jump on this opportunity!

Serious? Civil Disobedience, Spin, and Real Change

[Tripp Lilley]

Serious about your frustration with the RIAA and corporatism in general? Try Civil Disobedience. No, really. Be willing to get arrested for possessing the tools we take for granted. I am. But read on...

First, a summary, since this is long and will get chopped:

• We can't win if we look like the bad guys. Therefore, we must clean up our act, both public and private, and be willing to address the real, underlying concerns of our fellow artists and consumers.
• Corporations don't trust individuals; individuals don't trust corporations. Therefore, we must gather all of the individuals together on our side, artists and consumers alike, instead of allowing the corporations to divide us.
• The future is change; everyone is scared. The industry is afraid, but also opportunistic. It believes it can secure a future for itself built by legally forcing nature to behave itself. It attacks the fears of consumers to create this legal impetus.
• The "Tragedy of the Commons" is worrisome. Individual artists are afraid that if they open themselves up to a meritocracy, they'll be raped. We have counterexamples, and we also need to set expectations.

We can't win if we look like the bad guys

Before you don your DeCSS Shirt, it's important that we get our act together and learn the very powerful art of spin . Don't sneer and say that's beneath us. Right now, the RIAA and MPAA are mobilizing a very powerful political engine. They are engaging in a classic tactic, painting our community's members as pirates and criminals in the public's eye. It's our job to spin right back at them, to recast the debate in terms that make us clearly the good guys, and them clearly the corporate Goliath, out to trample the rights of individual artists and consumers. Here's how...

Start giving props to artists. Start decrying the fact that there's no widely available, secure, trustable infrastructure for "tipping". Start pitting the labels against the individual artists, whom you would compensate directly, if there were a reliable means to do so. Blame the corporate hegemony for this situation. Traditional corporations exist for one reason alone: profit ; profit to the exclusion of all else, including the rights of artists, and the rights of individual consumers. Start pitting the labels against consumers, by using inflammatory phrases like "abrogation of our rights" and "corporate hegemony" (please understand what they mean and be able to defend them calmly, though). As soon as we can swing the focus of our fellow consumers' mistrust and cynicism to the industry, as soon as we can paint ourselves the David in this battle, we will begin changing things.

The reasons for this are simple:

• People root for the underdog. Right now, the RIAA and MPAA are painting themselves and the artists as the underdog against the massive, unstoppable tide of digital piracy and mayhem. As it happens, they may be right, but I'll get to that in a minute.
• People fear for their own property. People want to be "secure in their persons, houses, papers, and effects". The RIAA and MPAA are casting this debate squarely in terms of theft of property because they know that will strike a chord with the public. They want you, the consumer, to believe that, if you don't side with them to stop Napster and DeCSS, you'll lose out just as much as if someone broke into your house and stole all of your CDs.

My freshman year in college, someone stole 250 CDs from my dorm room. 250 CDs that I had worked very hard to afford, and had worked very hard to acquire (many rare imports, anime, etc.). I felt hurt, violated, confused, angry, and all of that. The RIAA and MPAA are trying to connect with those feelings in the consumer public.

We need to be going for the same connection, while also making the connection between individual freedom and liberty. We need to make it clear that we're all for just compensation, and that we don't need Goliath's hand to ensure that compensation. We need to show our fellow consumers that the industry is just in the game for the sake of revenue, and that they don't give a damn about consumer rights, nor do they trust consumers in the least. Yet they ask for our trust that they will justly compensate artists, that they will respect our rights to fair use, that they will treat us as equals (IANAL, but a corporation is legally considered a person.)

Corporations don't trust individuals; individuals don't trust corporations

The RIAA and MPAA would have you believe that every artist and "legitimate consumer" out there is on their side, and that everyone else is a pirate. We know that's wrong, but what do we do about it?

Get all the individuals on the same side. Artists are individuals. Consumers are individuals. Everything in between the two is corporate infrastructure. The internet makes that corporatism irrelevant to the kind of relationships we could be building with our fellow individuals.

If I play your song, and I like it, I'll give you a tip. If I play it all the damned time, I'll give you big tips, frequently. If Metallica pulled their heads out, they'd understand that they'd make a lot more from me letting me tip them than they are right now, since I won't buy anything new of theirs (even though I really want to).

The future is change; everyone is scared

Things we've taken for granted, as a society, as individuals, and as corporations, are all in the process of changing dramatically and radically. Specifically, traditional notions of property become more meaningless with each passing day. We know how to treat tangible items as property (you're stealing it if you deprive me of it without my consent), but we don't know how to treat intangibles as property; after all, if you copy it from me, how are you depriving me of it?

And if you think that distinction is cut-and-dried, and that it just means we need two classes of property, intellectual and tangible, think again. What's going to happen in a decade or three when nano-technology makes tangible property available to anyone with a handful of garbage, a replicator, and a design?

Now, it's understandable that corporations might be afraid. After all, they might disappear. Or have to reinvent themselves radically. I think they're pretty well aware of that fact. The issue, ultimately, is one of control. The industry wants to control its destiny, but it doesn't have that kind of power. It seeks to create that power, artificially, by lobbying to create laws like the DMCA, that curtail individual rights that are far more powerful than they were when they were granted, 225 years ago, before there was an Internet.

I don't know about you, but I don't want to be controlled by a corporation. I want the freedom to interact with my fellow individuals, to share and communicate and transact by our own rules. I want to write code and trust that you'll compensate me for it justly. And I do. Literally. I have a 100% GPL clause for the work I do. And I trust the community and individuals to be faithful to one another, and to support one another. I don't need a law or a corporation to enforce what ought to be human decency.

The "Tragedy of the Commons" is worrisome

The idea that some people will steal all the goodies is worrisome. They can't. Unlike the commons about which "The Tragedy of the Commons" was written, you can't trample up the grass around an artist. You can't turn a director into mud by copiously copying her work.

You can refrain from contributing to their livelihood. You can enjoy their work and simply not tip them, even though you can afford to tip them. Fine. We already have a really good term for that in place: cheap asshole. Perhaps we could get it made into a legal term?

Anyway, there are natural responses to the problem of the cheap asshole. The first is the pillory, metaphorically speaking. A good tipping infrastructure will allow you to leave your tips either anonymously or with credit. An advogato-like trust metric will allow folks to rate your generosity in comparison to your means. A well-deployed micro-accounting infrastructure will make artists, producers, technicians, and so forth, accountable for how they spend the tips in pursuit of their art. All of that means that assholes will be highlighted in red, and the object of public scorn.

This is as it should be, and there is a long tradition of such treatment. Read A Christmas Carol if you doubt me. Everyone hated Scrooge because he was... well, you know. A c.a.

The second is based on what I call "laws of information physics". The two fundamental laws of information physics are:

1. Bandwidth between any two points at any given time is a finite resource.
2. Information flows freely as long as there is available bandwidth.

These laws can be exploited to prevent the c.a.'s from propagating:

• First of all, imagine if you had to pay for bandwidth by your usage. Hey, if we're not relying on king corporation any more, someone's got to foot the bill for your 128Kbps chunk of the OC48 to gratefuldead.com. Thus, when you download directly from them, there's a mandatory tip of $.05/MB ($3.00 for a 60MB album). You'd still want to tip on top of that if you liked it; that was just to cover their connectivity. Of course, they may be popular enough, and get tipped enough as it is, to not charge that connectivity fee.
• Imagine if free file-sharing networks allowed you to hook into the aforementioned trust-metric, and determine based on that whether or not you would allow your server to send files to a c.a. Through literal peer-pressure, people would find themselves either tipping liberally, or cut off from the goods.

Such infrastructure can be exploited in a lot of other ways that bring back our ability to trust one another, and to build community even in the massive scale of the Internet and a global economy. People who've had hard times could "get a break." Or if you're a real hard-liner about people overcoming circumstance, you could set your own metrics to shun anyone who claimed hard times, or anyone who was rich without working for it, and not generous with their wealth. "The possibilities," as they say, "are limitless."

Getting there from here

I'd recap, but you can scroll to the top for that. The bottom line is that we need to pay attention to the fears and concerns of our fellow individuals, and address those, and not just go spouting off about how we're going to do whatever we please and the industry can't stop us. We all believe the industry can't stop us, because ultimately, we can hide. But who wants to hide? And who wants a world in which sharing is a criminal act? So don't feed their fire. Help your fellow artists, consumers, individuals understand how we can build a better future together, without corporate hegemony.

And be prepared to get arrested in the meantime. But when you do, make sure you come off sane, rational, and reasonable. Make it clear that the man is putting you down. If you're not calm, careful, and likable, your fellow consumers and artists are going to see exactly what the RIAA and MPAA want them to see. And away goes your freedom and their freedom.

P.S. I'd have crossposted this to advogato, but I'm not certified by anyone as having done anything special. So if you're of a mind to, and have a decent cert there, please certify me if you think I can add value to the discussions there. Thanks.

mp3.com just like all the others

[Chris Johnson]

Whoa, hang on a second! (yah it's me again, obGoDownloadTunes mp3.com/chrisj bla bla bla)

You need to pay a little more attention to the intellectual property implications of labels vs. mp3.com. mp3.com does many things horribly (annoying page layout, tottering servers, terrible messageboards) but if you look at their artist agreement there are some extremely important points that I sure hope potential competitors take seriously:

• Nonexclusive contract, with the artist continuing to OWN the mechanicals. Contrast this with any majors contract in which the label owns the mechanicals, the songs, even the band name and the website or the Artist's name itself (!)
• Contract is only renegotiable with the agreement and acknowledgement of the artist! If this seems obvious check out some music biz contracts- see how often the contract is unilaterally renegotiable by the label. That means 'we can change it to whatever we want, after the fact, and you already signed off on it'.
• 49.9999% royalty none of which is recoupable- compared to a tenth or hundredth of that much, already pledged to recoup recording costs mandated by the label. In other words, on mp3.com you get $40, or maybe $400 (what I'm hoping for in the mail) or even $4000 if you have a _lot_ of listens and CD sales- and on the major labels you watch a lot of money go by and keep none of it, nada.

Honestly- it's good to be skeptical, and there are plenty of reasons to knock mp3.com. The deal they offer is not one of them. For all intents and purposes, and even with all their flaws, mp3.com is something new, and the key point (to me) proving that is the nonexclusive nature of their deal- 'sign' with mp3.com and you continue to be totally free to move. Worst that can happen is that you decide to remove your stuff and mp3.com are slow to do it- they make no claim or attempt to own your IP, they just ask for very extensive RIGHTS to USE it, which is waaaaay different, and nothing like as harmful as signing away your creative work to a label.

I try to avoid obsessively posting all over mp3 threads with my little links and all ;P but I needed to open my mouth here, because even if mp3.com itself doesn't survive the next decade, as an artist I need something LIKE mp3.com, something that will strike the same terms for use of my music. I'm happy to sign over quite extensive rights to _use_ the stuff- but I'm going to keep the mechanicals, and keep ownership of myself and my name and the tunes, and I'm going to want to see that the contract doesn't get to change the rules about this without my okaying it. And mp3.com walks this line very honorably. It's almost as if they were behaving like some more honorable industry and trying to come up with a fair contract for artists. *shock!* *horror!* ;)

GPL doesn't depend upon a licensing model of sales

[Anonymous Coward]

Imagine how you'd feel if, after you paid a dealer $20,000 for a new car, you found a note inside saying that you had "agreed" not to open the hood or to let any "unauthorized" shop open the hood to do repairs. Or a note stating that "unauthorized lending of this automobile is prohibited by applicable laws." And because you have opened the doors (no other way to find the notes!), the dealer won't let you return the car to get your money back. This is how the software industry, the music industry, and the movie industry treat us with increasing frequency. It doesn't mean that this is right or that we should buy into the idea of restrictive licensing for every mass-market item under the Sun.

If you want to sell me a mass-market album, a software package, or a video in a consumer setting, there should be no shrink-wrap licenses, no click-wrap licenses, no UCITA, and no DMCA-enforced access controls after the sale. Just your merchandise, my money, and the normal copyright / sales / private property laws.

By the way, if you look at the current version of the GNU Public License closely, you'll see that it differs in a very essential respect from most shrinkwrap "licenses".

Shrinkwrap "licenses" start from the bogus premise that you are bound by them, and then proceed to try to take away rights that you, as an owner of a legal copy of a copyrighted item, already have under the law. The GNU Public License acknowledges that you have rights under copyright law, and states that you do not need to agree to the GPL to exercise those rights. The only reason for anyone to agree to the GPL is to gain authorization to perform additional actions (most notably redistribution) which are not part of the default rights you get from copyright law.

To put it more succinctly, shrinkwrap "licenses" are BAD because they distort contract law in the service of taking away your right to make use of your own property. The GPL doesn't do this.

How could this be applied to CD sales? One way might be to include a license in the liner notes that allows buyers to give away copies of songs. Say, "if you accept this license, you can share promotional MP3s of these songs, encoded at a rate of 64Kbps" ... or "you can make CD-quality copies of these songs beyond the limits of Fair Use if you go to http://www.mymusicsite.com/ and pay for the songs you copy." The key here is not that everything is free (as with GPL) but that you would be offering extra value to customers, instead of beating them with a stick.