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Napster's Execution Stayed; Not Fair Use
Mirrors:
- http://eon.law.harvard.edu/~wseltzer/napster.html
- http://www.politechbot.com/docs/napster.021201.html
- http://lvalue.com/nap.html
As Michael Sims points out, these 22 words are probably the most important portion of the ruling; everything else is technical details and window-dressing:
"...the record supports the district court's conclusion that Napster users do not engage in fair use of the copyrighted materials. We agree."
That doesn't look good for those who want to swap copyrighted music peer-to-peer. That same comment could probably apply to Gnutella users, for example. Brace for impact.
Moving on to the case of Napster specifically and what will happen in the immediate future...
The court found that the injunction is simply too broad in its current form, but bounced the case back to the district court with instructions, essentially, on how to do an injunction properly.
They were quite clear that an injunction should be issued to stop Napster:
The district court correctly recognized that a preliminary injunction against Napster's participation in copyright infringement is not only warranted but required.
But then went on to explain why the current injunction must be limited to the extent that Napster fails to comply with Metallica-style "here is the list of bad files" warnings. Only in such a situation can an injunction stand:
We believe, however, that the scope of the injunction needs modification in light of our opinion. Specifically, we reiterate that contributory liability may potentially be imposed only to the extent that Napster: (1) receives reasonable knowledge of specific infringing files with copyrighted musical compositions and sound recordings; (2) knows or should know that such files are available on the Napster system; and (3) fails to act to prevent viral distribution of the works. ... The mere existence of the Napster system, absent actual notice and Napster's demonstrated failure to remove the offending material, is insufficient to impose contributory liability.
I'm not quite sure how this could be enforced. Obviously, anyone can rename any MP3 "metallica-master-of-puppets.mp3" and Napster is not capable of acting to prevent distribution of same. What Napster can do is kick users off the system who have been shown to be pirates. And since they have shown their willingness to comply in the past, I'm not sure whether the court will ever find that Napster will "fail to act."
Finally, there was this simple comment:
Napster may be vicariously liable when it fails to affirmatively use its ability to patrol its system and preclude access to potentially infringing files listed in its search index.
Okay, great. Now the courts just have to take out every other way to distribute copyrighted MP3s, and the recording industry will be saved! It shouldn't be too terribly hard to take down AOL Instant Messenger, Gnutella, Hotline, IRC, OpenNap, FTP, all Web sites, all E-mail, Carracho, and every other way to distribute MP3s online. Oh, and then there's the offline trading. They're gonna also have to ban CD-R, CD-RW, DVD-R and all variants thereof, Zip, Jaz, Orb, SuperDisk, and all external hard drives.
Yeah right. The recording industry is wasting all kinds of money to try to stop MP3 trading. I'm willing to bet they've lost as many millions of dollars trying to stop MP3 trading than they've actually lost from piraters. A significant number of MP3 traders actually do buy CDs that have more than one good song on them, and the crummy artists with just one decent song tend to get their music pirated -- because most people would never have paid for their album in the first place!
If the recording industry had any sense, they'd realize that it's impossible to stop MP3 trading. Impossible. Taking down Napster or making it fee-based will only lead most people away from that option, causing them to switch to one of the many alternatives listed above, or even another that I haven't mentioned or that will eventually pop up.
Now hear this: Artists who embrace MP3, including but not limited to The Offspring, Moby, Dave Matthews Band, Limp Bizkit, Radiohead, Madonna, Ben Folds Five, Foo Fighters, Prince, and every artist on MP3.com, are a lot more likely to sell their songs because they actually show their support for everyone's favorite music file format, and realize how beneficial -- not harmful -- MP3 is to them. The same people who buy from these artists will think twice about buying from an anti-MP3 artist like Metallica, who had thousands of their (former) fans banned from Napster.
In summary, the recording industry and anti-MP3 artists are only digging graves for themselves by attacking Napster. The fewer people who respect you, the fewer buyers and investors you'll have.
http://www.napster.com/speakout/
Nothing, except that once Napster is notified by a non-BMI (say, Sony), Napster can no longer claim they don't know. Napster then has to block access.
...phil
...phil
"For a list of the ways which technology has failed to improve our quality of life, press 3."
I use napster for finding bootleg tracks, live recordings, and stuff like that, that have no real copyright to them.
Does this mean now that every search I type in won't return 50 misplaced files and 20 hits for SAMPLE_ACCURATE?
I don't care much for Napster. Never really used it; I tried it one or two times but I just don't like it. And I don't agree that MP3 piracy is fair use.
But at the same time, I hope Napster wins this. Mainly because its loss would set several extremely dangerous precedents. First, the idea that a service provider is liable for its users. Second, the idea of presumption of guilt (not all Napster users engage in piracy, after all). And third, an erosion if the idea of space-shifting as fair use (even this "modified injunction" defeats this important right).
Honestly, I don't care about Napster itself. It can go down for all I care. But I hope it doesn't drag consumers with it, as losing in a court case like this would cause.
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Some interesting points here are the last little caveat in the last paragraph of section eight. The first amendment ("fair use") claim made by Napster and used by many here was completely nuked by the court. It found that Napster users were not fair users and therefore the first amendment protections against prior restraint do not apply here.
In operational terms the modifications to the injunction are also interesting. Basically the court found that the original injunction was too vague because it put all of the burden on copyright policing on Napster. The court pushed most of the burden back to the copyright holder, saying that the RIAA, et al. must notify Napster of a violation to start the process in each case of suspected infringement. Napster then has to follow-through and nuke the content and user, but the court did find that peered content on decentralized systems cannot be held to a higher standard than the safe harbor provisions of the DMCA require given the reality of the architectures of such systems.
jim
AZI/Mojo Nation
The court made several findings related to this point (you can get to the heart of the result in section 8 of the decision) but it basically came down to this -- Napster is not responsible for keeping pirated stuff off of the service, but if a copyright holder comes to them and demands that something must be removed then Napster has to do so, the judge also indicated that Napster needs to stop pretending that it can't do certain things to prevent this from happening again (possibilities here include things like proactive filters on search requests to prevent users from finding copyrighted tracks, stronger user authentication to track "real names", etc.)
jim
"last i checked, it's not illegal for me to go around telling people where to buy drugs. nor is it illegal to write a book telling people how to make pipe bombs."
People who claim that Napster is just giving out directions to people who then do illegal stuff are really wrong.
Napster has created a (really dumb) business model based on BROKERING illegal transactions. Sure, you're not doing anything illegal by telling people where to buy drugs, but Napster is doing the equivalent of setting up a meeting place and time, vouching for both parties, keeping an eye out for the cops, and essentially doing everything except physically moving the money and drugs. If someone were to bust that deal, Napster would likely get nailed as an accessory.
Not that I think shutting down Napster makes any sense. It just means that someone (Freenet, Gnutella, whoever) is going to release a system that's much more resistant to lawsuits. I just can't figure out why everyone hasn't just jumped ship to opennap and friends.
c.
Log in or piss off.
Napster effectively lost and will be subject to a preliminary injunction while the trial goes on.
The court held that Napster users were infringing the record companies' copyrights and that Napster, if it knew about the specific infringement, could be liable. But, Napster allows for noninfringing uses, so it can't just be shut down completely. Thus, the injunction must be modified so that Napster must be informed about specific acts of infringement. Additionally, Napster must take steps to police the system and look for infringement. These steps make it harder for the record companies to turn off Napster, but the court largely agreed with the District Court below.
Interestingly, the court didn't say whether Napster would be protected under the safe harbor of the DMCA. The District Court has to decide.
What does technical know how have to do with legal and political points of view? Speaking for myself, and many others, I'd be willing to bet that I know more about technology than the vast majority of slashdot users, especially napster users, yet I definitely see Napster as a threat to the greater interests of society. Likewise, there are a great many engineers, computer programmers, and others that are well out of their thirties, often have a better grasp on technology, and take a similar view point.
This is the LEGAL system we're talking about here, it's never ever been about public opinion, it's about the rule of law. The very notion is absurd. If the founders intended the majority to decide legal cases, they'd simply have voting machines as the courts, instead of lawyers, judges, etc. The founders, and most other stable societies, decided long ago that this was a very dangerous system.
Very little. First, you mistake slashdot and similar forums with your "generation". Second, the generation(s) that you refer to are actually relatively conservative when you compare them to your parents', and the vast majority of their rhetoric went up in smoke once they got a real job.
On the one hand, if you just write a magazine article that mentions where a lot of drug sales are going on, you could defend that as journalism, and the First Amendment would shield you. On the other hand, if you published a magazine telling people where they could buy drugs, and encouraged dealers to advertise in your magazine, and set up your business office so the dealers could pay for their ads with cash and not leave records of their identities, I don't think the courts would let you off the hook.
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send all spam to theotherwhitemeat@ropine.com
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Make mine methylphenidate.
Also of interest was the fact that the court only requires Napster to make a reasonable effort to comply with the copyright holder's demands. It's unfortunate that they don't go into detail as to what qualifies a reasonable effort. From my reading of the text, a simple scheme could be implemented by users to get around all this:
Users sharing files use a simple encryption mechanism on the file names, and possibly even ID3 tags. (rot13 might be good enough, depending on how much effort the court expects napster to exercise). This encryption is reasonable, as napster users have a right to protect their own privacy. Moreover, the process doesn't implicate Napster in the process at all, but, if done right, would maintain the same level of service, as well as the same potential future benifits to Napster (ie, banner ads, etc)
At this point, it's difficult for the RIAA to claim laziness as "contributary infringement", as Napster would have to not only excersise the exceptional effort of trying several decryption mechanisms on every file, but also because it could easilly be found to be in violation of the DMCA's anti-encryption clauses. An actual police investigation would be requried to break the encryption with the justification of law enforcement.
"You know, Hobbes, some days even my lucky rocketship underpants don't help" -- Calvin
Liquor stores are selling items which they own; bottles of booze. Napster users are giving something away which the owner does not want given away; free rights to listen to their music.
The former is a business to consumer transaction of goods owned by the business. The latter is a consumer to consumer transaction of rights they have no legal authority to transfer or bestow.
You clearly do not own the music (you aren't Lars Ulrich, are you?), only the rights to listen to it. Nowhere, implicitly or explicitly, are you given permission to bypass the owner's wishes and start dishing out these rights as if they were yours to give.
In your example, you site drunk driving, which is a possible illegal outcome of a legal transaction, and music swapping, which is an inherently illegal transaction. Apples and oranges. I don't like the law, but we have to live with it until it is stricken from the books.
Eric
Man has it been a long time since I bought a copy of High Times.
Great mag!
Anyone know if it's still published?
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"...the appeals court says the company has to keep users from gaining access to content that could potentially infringe on copyrights."
Piece of cake.
One, turn Napster into a generic file exchange program. Instead of just MP3s, let them exchange videos, books, or cookie recipes.
Two, implement some form of PKI in the Napster software. Napster sets up PKI repositories, and every time you install Napster it requires you to either input an existing public/private keypair of generate a new one. Then it simply encrypts all traffic before entering a Napster server and decrypts it after it leaves one.
Given that Napster can no longer see what's being traded on its service and can't decrypt the packet flow, Napster can't distinguish between copyrighted and uncopyrighted content, the RIAA can't "tap" the system to determine what's being traded, and end users get exposed to the merits of encryption which they might then be willing to use in their email.
Sounds like an all-around win to me.
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I find it interesting that The Age web site shows on its front page news for today both an article about the Napster decision and another article that reveals that CD sales in Australia increased despite Net piracy.
It is interesting how the word "piracy" is increasingly being used to describe the dissemination of any information (software, music, etc) without the owner's permission. If that's the case, then surely every company in existence that sells its mailing list without seeking approval from everyone on it is indulging in data piracy.
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The only thing necessary for the triumph of evil is for good men to do nothing. - Edmund Burke
Liquor stores are known to contribute significantly to drunk driving. Drunk driving is a widespread practice, yet it is illegal. And the liquor stores profit from this. It isn't feasible for them to determine which customers will go on to break the law. I guess you would be in favor of shutting them all down, eh? After all, it is almost a certainty that it would reduce the amount of drunk driving (moreso than shutting down napster would reduce online trading of copyrighted music). So what do you say? Shut down the liquor stores? If not, then please explain the difference here.
You're so right. The legal world is twisted indeed. We need less doublespeak and more common sense in the law. But then we wouldn't need so many lawyers to "interpret" the leagal spaghetti code! By making things so damned convoluted, they buy some job security.
Your statement: Napster users are giving something away which the owner does not want given away; free rights to listen to their music. - that statement only reinforces my basic point above.
In your own words, it is the Napster users that are responsible for their actions, not a technology company which may or may not be used for illegal purposes. The analogy with drunk driving still holds. Napster can lower the energy of activation for an illegal process, but it does not initiate the illegal process any more than liquor stores initiate drunk driving (they only facilitate those who wish to engage in the illegal activity of drunk driving). Napster can be no more culpable than liquor store owners.
You are wrong when you say that music swapping is inherently illegal. If you are paying attention to what's going on, then you would know that certain instances may be, but others are definitely not. Some people will get drunk and kill on the road because of the alcohol they bought from a liquor store, others will not. (And if liquor is just a product, then where is the product liability suit?)
If Napster has to guarantee their service can't be used to trade illegal files, then liquor stores should have to guarantee that their products can't result in public intoxication or drunk driving. And Fed Ex will have to shut down until they can guarantee that there are no drugs being shipped in their boxes. Apples and apples. Understand?
Well then, I guess we'd better shut down Fed and UPS, since it is widely known that they facilitate illegal activities such as mailing drugs around.
The list of technologies which can substantially assist people in breaking the law is loooooonnnnngg. Computers, guns, phone books, cameras, cars, phones, rolodexes, pens & pencils, hammers, etc.
There aren't many things in this world that couldn't be used to substantaially assist me in breaking some law. Should we outlaw them all? I'm sure I could think of a way that a carrot could substantially assist me in breaking some law. Outlawing technologies isn't the answer!
And Dischord is not your usual record label either.
Whether or not it IS fair use... it should be. As a musician myself, it's really about people hearing your music. It's nice to get something back but hte act is what should be rewarding in and of itself.
I have spent countless thousands of dollars over the years on instruments, equipment, rent, studio time, and most recently hardware and software. Playing regionally we might get gas money and expenses the night of the show covered. If we press a small (500 - 1500) run of CDs we hope to break even.
Most of my bands music is available on mp3.com (here) and our website.
This is only not FAIR when the artists and their labels no longer care about music.
Is it fair use when I buy mp3s from eMusic and burn those to CD? I bought an mp3 not a CD.
I own Red Medicine by Fugazi on cassette. I don't even have a cassette player anymore. I downloaded the songs from Napster and burned my new Red Medicine CD.
Was this bad? I payed for the cassette. Fugazi and Dischord got there money and are happy about it, just as I am sure that they are happy that I am still enjoying their music on my CD players now.
Not true. As long as the performance rights society gets it's cut (ASCAP or BMI in the US) you can perform any song for the public and record it and sell the recordings. A friend of mine put together a "tribute" album of covers of a particular artist. He pays a percentage of each CD sale to BMI (the performance rights society for this artist) and everything is hunky-dory.
He does that, but he does not need to do that. As long as the copyright on the tunes is paid, he can cover the song and modify the lyrics. The fact that it is a parody gives him even more rights than a straight cover, as the Supreme Court has affirmed that parody and satire have a special protected status greater than other material (see Larry Flynt vs Jerry Falwell and Two Live Crew vs the estate of Roy Orbison).
I have no idea why Al bothers to ask permission, other than the fact that he is a nice guy.
Not true. There are thousands of cover bands all over the world covering famous songs, lame lounge singers singing Billy Joel songs, etc. As long as the venue has paid ASCAP and BMI for the rights to the songs (look for the decal for each on the window of your favorite club) you can listen to a bunch of fat 50ish guys in bad Hawaiian shirts who are not Jimmy Buffet spend the whole evening covering Jimmy Buffet songs.
"How perfectly Goddamn delightful it all is, to be sure" Charles Crumb
. . . that there are small points on which the district court opinion was quibbled with by the Circuit Court. But it is plain beyond cavil that these are not the most important issues.
If ultimately this case stands for the proposition that the defendant bears the burden of affirmatively enforcing against infringement at all costs, then what purpose is there of an indexing service? Sure, Napster doesn't have to look at the files -- but if it is obliged to cut off anyone who uses the same title and is slammed for not doing so, is that really "better" than the status quo?
ASCAP has a very long list of titles. Combine that with BMI and the Harry Fox Agency, and we have now shut down 100% of Napster -- including songs and records not owned by the plaintiff! By shifting the burden to the defendants, the value of indexing --being able to search by name-- is lost entirely. The fact that we can continue to have point-to-point transfers of code names "xyzzy" means "Stairway to heaven is of no utility without a codex. But the codex is now contributorially infringing.
This is the same as killing Napster -- even for real non-infringing uses, such as space-shifting.
No, Napster needed to win on the REAL issues -- contributory infringement under the Sony standard.
If they survive under a small amount of it, the entire net will be rendered more vulnerable, and services such as ftp, archie and veronica are next. To say nothing of web indexing, etc. . . .
You think DMCA demand letters are annoying now, just wait until the Napster letters start a-coming.
Sorry, this was a slam-dunk loss for Napster and the Net. Let's hope for a prompt review and reversal; or let's start lobbying and see just how serious Senator Hatch is about this stuff.
. . . that the procedural posture of this case is essential to reading the opinion. Napster is appealing the grant of a preliminary injunction based upon a thin evidentiary hearing. Even if 100% affirmed, both sides would then produce their evidence and plaintiff would still bear their burdens of proof at that trial. I disagree that the Circuit court really reversed anything here, except the threshold question whether the DMCA issue should be dismissed without proceeding on trial on the applicability questions.
The Circuit court, unfortunately in my view, suggested that serious issues were raised concerning the availability of the defense to Napster, which supports more than detracts, IMHO, from the defense at trial. I agree that DMCA may be all they have left, but this doesn't leave me feeling particularly happy about their chances under that defense.
I think Napster's best, perhaps only, reasonable chance is to get this opinion reversed on appeal, either directly or after a final judgment following trial. I don't know how much longer they can hold out, however.
Is there any word about timing concerning Judge Patel's scheduling of the remand hearings?
But there are several problems with this; huge CPU requirements, huge temporary space requirements, and - most important - Napster doesn't have the files in the first place.
Boss of nothin. Big deal.
Son, go get daddy's hard plastic eyes.
Expanding a vast wasteland since 1996.
Napster may be required to use the architecture of its service to block access to files whose names match those of infringing works, but it's not forced to change the system to prevent those works from being listed under alternate names, for example. "Napster ... bears the burden of policing the system within the limits of the system." Filesharing can go on.
The 9th Cir. gives a bit more credence than the district court to the Sony defense. The problem is that Napster actually knew about and promoted the service's unauthorized copying, not merely that the service was capable of such uses.
There are plenty of other troubling aspects, including the Court's dismissal in a few lines of Napster's First Amendment defenses; its finding that most of Napster's uses were not fair, in part because record companies might begin to exploit a market for digital distribution; and its willingness to find "commercial" activity.
The plaintiffs can probably bog the service down pretty well with numerous notices of infringing files, but they can't make Napster do all the work for them.
-- Openlaw: Fighting for fair use and the public domain
According to the Washington Post.
A federal appeals court ruled Monday that the music-swapping service Napster must stop trading in copyrighted material and may be held liable for "vicarious copyright infringement." Napster must prevent users from gaining access to copyrighted content through its lists of songs archived by the service's users, the 9th U.S. Circuit Court of Appeals said. The panel also directed the Redwood City-based company to remove links to users trading copyrighted songs stored as MP3 files.
Best Slashdot Co
There is good news in this: the fact that the RIAA actually has to identify specific recordings that infringe.
One thing that the RIAA wanted was the blanket ability to kick recordings off, without proof that the recording in question was really copyrighted. Basically, the ability to convict without evidence.
Now at least there's a prayer that when (not if!!) RIAA tries to get rid of recordings from non-RIAA artists, furthering the RIAA monopoly, the courts can stand on the side of Truth and Justice ... rather than
just the New American Way
(Corporate Money Buys All).
>The future: Music will be only permitted via direct brain transmission that is immediately wiped from memory after listening.
Finally, this is something we need. I heard Hanson on the radio. hmmmmbop. can't get it out of my head! No! The pain! aaaarrrgghh!
I just hope I won't have this inexplicable craving for Pepsi from the subliminable (is that the right spelling, Mr. Bush?) messages embedded in the music.
//rdj
No one can understand the truth until he drinks of coffee's frothy goodness.
--Sheikh Abd-Al-Kadir, 1587
I believe the crime Napster is being accused of committing is called "contributory copyright infringement". Sort of like being an accessory to a murder, but worse.
--LP
(Oops, I left out the <SARCASM> </SARCASM> tags!)
My comment was not that all computers are recording devices, but that many computers do infact have digital audio recording as their primary purpose. I work across the hall from a mid-sized recording studio that uses PCs and Macs as recording devices only (well, recording, mixing and effects processing).
The ironic part is that several of the people who record there never record to CD or DAT at all, but simply sample down to MP3 and publish on mp3.com. I guess that means they're never using a recording device to publish their music.
- Michael T. Babcock (Yes, I blog)
In truth, regardless of the decision, the revolution, so to speak, has started. Even if Napster gets shut down, person to person technologies will end up dominating in the future. It might be a while, but distributed searching, storage, processing, and sharing is still going to be a huge thing. Whether modern systems such as freenet or gnutella will have any part in it is hard to say, but the potential of systems which facilitate these types of mechanisms is limitless.
... it's probably a victory for most of the industry, but it doesn't mean that P2P is dead. Just wait, things will change.
So it's a victory for the recording industry
It's not like all of our MP3's suddenly turn into pumpkins. It's not like the "OpenNAP" servers suddenly will shut down. Does this change anything?
And I still don't know of any way to pay what a radio station pays for a person to hear a song they broadcast. Any higher fee is unreasonable. Any fee for listening to a song that you own on prerecorded media is unreasonable.
OK, RIAA, now it's your turn. Tell us how we can pay you fair fees for listening. Remember that most of this music has been and is being broadcast, so we are legally entitled to record that broadcast. Then go public with the information about how much of the money the artists get.
I don't even feel the least little bit bad about using Napster-like services. How else should I pre-listen to a recording that I'm thinking of buying? Wait for the radio to play it? Heck, if I do that, I can just record the broadcast and own a legal copy. It's up to the RIAA; if they want me to stop buying prerecorded music, it's fine with me.
Yes. The right to free speach is not absolute. Your example of telling people where to buy drugs, if viewed by the courts as a conspiricy to profit from the sale of those drugs, would be a crime.
Someone you trust is one of us.
Right, go watch NBC and be in the "mainstream". Go watch the anti-hussein Minute of Hate. George Bernard Shaw said it best with "Reasonable men change with the world. Unreasonable expect the world to change for them; therefore, unreasonable men change the world."
Just the other day on 60 Minutes, Mike Wallace did a story on a Sheriff in New Mexico. Not once did he give air time of anyone remotely sentient. He included liberal drones who said that this sheriff won't be stopped until he is six feet under. Such childish name calling. And that's just what it ended with. Not once was anyone interviewed backing this sheriff who was hard on crime. Now imagine the flak that would occur if Bill O'Reilly said that about Herr Clinton. He would be crucified! And how can you say that's not liberal?
I also recall a time just before I started watching Fox News during Gore's Un-Constitutional Coup attempt. It was also right before Scalia and the Supreme Court stepped in. The FUD attempted to be spread by the commi-crats was that the Supreme Court ruling MUST be unanimous. I believe Peggy Noonan was on there to refute this claim but then the CBS anchor said "Well I don't recall the Republicans being for the people during the civil rights era." WTF?!
Another incident I recall with that robot, Mike Wallace, was during the feminization of our Military Academies. There was a feminist Air Force 2nd lieutenant and a male Master Sargeant. He asked the Master Sargeant if the only reason he opposed women in the military was because he is a chauvenistic pig. Yeah, I don't see anything wrong there.
And another time with Al Gump going on the mass propaganda of NBC's Today Show. He just made nigger-rigged appeal to the ignorant soccer moms about how "every vote should count." So reminiscient of Josef Gerbils.
Yeah, I see nothing even remotely "liberal" in the media. Oh, and for the record; O'Reilly is more of a libertarian than a conservative. The most conservative anchor on Fox News is Neil Cavuto even if he has a big head :)
A little "Dewey defeats Truman" anyone?
- passion
A number of people have told me that they thought Napster was shut down months ago. I realized that the media, which is owned/controlled by the same conglomerates as the music industry leaders, is controlling what people find out.
Hello little man. I will destroy you!
On the other hand, if you published a magazine telling people where they could buy drugs, and encouraged dealers to advertise in your magazine, and set up your business office so the dealers could pay for their ads with cash and not leave records of their identities, I don't think the courts would let you off the hook.
good point, but this example of yours is a little different, because you're inferring that one would be collecting advertising and possibly subscription charges for your hypothetical Druggie's Quarterly. Napster, as it stands right now, is free. i'm not sure: does that make a difference in American law?
but here's an analogy that i think fits pretty well: i had a friend who used to grow lots of marijuana. i'd go with him on occassion to "hemp" stores that sold pipes, bongs, and a whole lot of growing equipment. they would also sell magazines that are about growing marijuana. it's quite obvious that a store such as this is around only to provide people with a means to break the law. if this is the case, then why were these stores allowed to operate? how is Napster different?
also, my original post was pretty much a re-hash of what the cluefull "pro-Napster" responses i've seen. it's certainly not worth +5 Insightful. moderators, go spend your karma someplace else: i already hit the cap long ago.
- j
MSNBC seems to spin it differently too, saying No Napster Reprieve.
I don't think it's media bias, though. Over the years I have acquired more respect for the professionalism of news agencies such as CNN and MSNBC over agencies such as Fox News to a degree and more so over ZDNet and CNET et al.
Mmmm.. Donuts
Call it a win for big corporate media, I guess. Notice that the court said that the Metallica-style censoring of files is perfectly legit, and that Napster can be held liable if they don't act upon such requests. This is extremely bad, because it gives the RIAA a way to deplete Napster's funds.
Just imagine: the record companies can afford to hire an army of trained monkeys to scour Napster looking for their copyrighted songs. They can then flood Napster with requests to block those particular users/files. Napster will have to spend obscene amounts of money doing this, and documenting their actions to defend themselves in the inevitable court cases that arise from such "infringements". This will deplete their funds rather quickly, and we can say goodbye to music swapping in any centralized format.
Napster's only recourse is to continue fighting this. We can only hope that they get more reasonable justices as they go up the appeals ladder, instead of the corporatists that sit on the 9th circuit.
I don't know if they can reasonably apply this decision to Gnutella...I sure hope not.
"You done taken a wrong turn."
-Bill McKinney, in Deliverance
Sorry Shayne, but I'm pretty damn sure that public performance of a copyrighted work is explicitly forbidden by copyright laws. You can't even do a cover without permission from the original author.
I know that Weird Al has to get permission from the author of every song he parodies, because even though the lyrics are his, the tune isn't.
If you held a concert for 100,000 and played a Buffett song, you would be hearing from Buffett's lawyers even if you didn't charge a dime. The reason being that by hearing your performance, 100,000 no longer have to pay through some other means to hear that same music, if not the same artist.
Now you can play it for a group of friends but ONLY because that type of activity is considered "fair use" and is exempted from the actual law.
Another example, jukebox owners and music webcasters have to pay royalties even if they don't charge for songs.
Any rights you think you have, you don't, you only think you do because so far the technology doesn't exist to enforce the laws.
- JoeShmoe
-- I wonder which will go down in history as the bigger failure: the War on Drugs or the War on Filesharing
The flaw with that argument is that it is rather simple for someone to tell if a whole car has been stolen. If the VIN number shows up on a hot list then it's stolen.
So all the car salesmen has to do is check the VINs against a single hotsheet and they are in compliance.
Napster can't do that because music doesn't have a VIN number, nor is there a hot sheet!
A better analogy is for the courts to say that all cars sold must not have antennas that were stolen from other cars. Since there are no VIN number on car antenna and there is no practical way of reporting a stolen car antenna, how on earth could someone know a car they are selling has the original antenna or one that was stolen?
If I use 10 seconds of Metallica music in a mix of my own personal music, is that stolen? The record companies would say yes, the courts would say "Napster you should have stopped it" and Napster would say "WTF???"
- JoeShmoe
-- I wonder which will go down in history as the bigger failure: the War on Drugs or the War on Filesharing
The Metalica/Metallica convention I mentioned actually exists. For a while Napster was auto-banning anyone who shared files with the name "Metallica" in them, so people started using/searching Metalica instead.
Napster knew about it, but as far as I know they never bothered to block it. Because then they would have had to block M3tallica or any other variation.
As far as how the naming convention spreads, it is actually quite simple. Just look at the Hotlist for someone that shared your same taste in music. Eventually you figure out what to search for to get what you want.
A great example of this are the warez groups that allow or even put their releases on Napster. You can search for the group's tag "-XXX" and instantly see all their releases being spread around for download. Also, in case you didn't know, it is very useful to search for numbers like 01 etc because you most often find people who have complete CDs usually published in the
"Artist/Album/Track # - Track Title.MP3" format.
- JoeShmoe
-- I wonder which will go down in history as the bigger failure: the War on Drugs or the War on Filesharing
Okay, sorry, I should have been more clear. I was lumping "author permission" and "paying royalties" into a single category in my mind.
Paying royalties for use of a song is, in my mind, getting author permission. Even if it isn't really the author giving the permissiong but the authorized agent (ASCAP, CMI, SECAM) acting on his/her behalf.
So yes, you can play a song without an artist's direct knowledge or even permission...but you sure as hell can't do it without getting permission (ie, paying for it) from someone, as Shayne implied.
- JoeShmoe
-- I wonder which will go down in history as the bigger failure: the War on Drugs or the War on Filesharing
For the link-fearing:
http://www.msnbc.com/news/528921.asp
For the cut-and-paste impared:
Click Here
- JoeShmoe
-- I wonder which will go down in history as the bigger failure: the War on Drugs or the War on Filesharing
Who is going to volunteer to read that tripe aloud?
H E- PRO-GRAM-NAPS-TAR-TO-BE-EYE-LEE-GAL..."
Although, technically there should be an audio version available from the US Court website for the visually-impaired...although if they can navigate the web then I suppose they must have some kind of text-to-speech technology anyway.
"THE-YOU-ESS-SU-PREEM-COO-ORT-HAS-DE-CLAIR-ED-T
- JoeShmoe
-- I wonder which will go down in history as the bigger failure: the War on Drugs or the War on Filesharing
Conversely, Napster may be vicariously liable when it fails to affirmatively use its ability to patrol its system and preclude access to potentially infringing files listed in its search index. Napster has both the ability to use its search function to identify infringing musical recordings and the right to bar participation of users who engage in the transmission of infringing files.
It sure sounds to me like Napster is screwed, if they have to monitor their servers for copyrighted material.
The finding seems to be that Napster can stay, but they've got to actively purge copyrighted songs from their servers. Not good.
No, that is not the status quo. Napster didn't stop piracy of Metallica's copyrighted work; they merely banned a few users who had done it. However, an unbanned user today could still go an pirate Metallica's work with Napster. What your paragraph says is that if notified by the copyright holders, it must halt transmission of that particular work.
Note that this will be extremely difficult for Napster to do; if Metallica says that they don't want any of their work traded, it will be Napster's responsibility to identify the work: if the filename contains the string 'Metallica', does it mean that Metallica owns it? If it does NOT contain that string does that mean that Metallica doesn't own it? No and no.
Since Napster does not have the technology to identify who owns what work, their only choice will be to shut down the whole operation since there is no way to tell who owns what (which is essentially what the preliminary injunction did; this one is doing the same thing, but giving more rationale for it).
My question is what is going to replace napster when it goes to pay only?
Well, theoretically, 99% of Slashdotters said that they would be happy with a pay Napster service, and used Napster not because it was free, but because of convenience.
Now we'll see if that was just talk, or if they were just trying to get something for nothing.
So now that the ruling is in and Napster has a deal with BMI, what's to stop Napster from becoming the official BMI music trading network, oh, and if some non-BMI music got traded, we didn't know about it?
If you disagree then it must be overrated, redundant or trolling.
You could put up proxy servers through which people can log into a napster/opennap server, and the only IP address you'd get to report is the proxy's IP.
The additional latency would be a problem, especially if you do the whole chain proxies thing, but it would make tracking a user impossible.
So why hasn't anyone tried it yet?
========================
63,000 bugs in the code, 63,000 bugs,
ya get 1 whacked with a service pack,
--- Grow a pair, liberals... stop letting the Republicans bully you!
Burris
Burris
(live concert taper)
In this age where information is the key asset in so many business models, strong (and fair!) copyright laws are the only way to continue to encourage innovation and further work into information-based fields. Such copyright-protected industries include music, software, books, etc.
Without protection under copyright laws, why would anyone write a book? Author A decides to write a book and then goes to have his book published. The publisher thinks it's a good book, steals it, and keeps all of the profit. Without copyright laws, it'd be legal. The same holds for the other industries. Imagine writing a hit song and then have the music industry steal it and sell it, keeping all the profits. In the dispersive environment of the Internet, everyone has the ability to be a "publisher" with or without the consent of the author. Napster is a publisher. Anyone who downloads the song and gives it to a friend is publishing the song. Without strong copyright protection, who's to stop it?
If I decide to build a computer and set it out for sale, it's generally agreed that if someone takes my computer without paying for it, it's stealing. If the thief is caught, she gets fined or goes to jail. Why is it any different for information? If I write a song and someone steals it, I want that person fined too. The person may not be stealing a tangible product, but he's still stealing my time to write the song.
If you find what someone is doing useful to you, you should pay for it if they request it. If you don't want to pay what they want, don't use it. You live in a capitolistic society, people. If you don't like it, move to another country.
last i checked, it's not illegal for me to go around telling people where to buy drugs.
Tell that to ebay. I guarantee you that if 1) people regularly sold drugs on ebay, 2) ebay knew about it, and 3) ebay did virtually nothing to stop the people, that would be illegal. But hey, if you think it's not, go for it, I'm sure you could make a ton of money.
ok then your [sic] infringing on my copyright! Could you as [sic] me next time before STEALING my comments for your own?
PJRC: Electronic Projects, 8051 Microcontroller Tools
Napster takes your money, gets a cut (they're for-profit, even if you don't pay), passes it to the dealer, and provides the dealer an addressed and stamped envolope with your on it. Sure, the dealer puts the drugs in and mails it, but Napster's involvement is akin to a broker with considerable involvement in the transaction, not just a directory like a phone book.
Of course, copyright violation and trafficing controlled substances are very different under the law, or at least that's my impression. The subject really is pretty accurate, I don't "know" the law, that's a matter for lawyers.
PJRC: Electronic Projects, 8051 Microcontroller Tools
Here's a choice quote:
"There are simply no grounds in either the plain language of the definition or in the legislative history for interpreting the term 'digital musical recording' to include songs fixed on computer hard drives."
Wow-- songs fixed on a hard drive are not digital musical recordings. Then what was the whole lawsuit about, anyway? My friend's a capella group recorded their last album to hard drive first-- if he'd known those weren't digital musical recordings, he probably would have paid that recording studio a lot less! Apparently, music is created during the transfer from a hard drive to a CD. Simply fascinating.
Only lawyers could come up with a situation where we're not storing music on our hard drives in the form of mp3's, and that non-music is infringing on the copyright held on musical works.
"Napster can be shut down and sued if they don't stop violating copyrights."
Natural response: Napster gets bought up by music company, turns into a subscription service, and only shares music from the parent compeny.
Gee, it's almost like a certain company saw this coming...
If you own a home, you pay for the taxes for your local library. It has nothing to do with having a job.
- I don't care if they globalize against free speech. All my best free thoughts are done in my head.
However, on some small level, I'm a little disappointed, particularly by some of the artists involved-- those not in the monetary leagues of Metallica, Limp Bizkit and Britney Spears-- that we're stealing out of their pockets. I think MP3's are great, and Napster as a concept is good.
But considering that I'm a writer, I would be pretty peeved if my stuff was being passed around for free. That is, stuff that I don't want passed around.
Does anybody else feel this twinge of guilt?
- I don't care if they globalize against free speech. All my best free thoughts are done in my head.
Uh, you pay for libraries with taxes.
- I don't care if they globalize against free speech. All my best free thoughts are done in my head.
can anybody tell me why Napster is considered differently? as far as i can tell it's just people failing to see the parallels to existing situations only because they're ignorant of the technology.
/. crowd enjoys - I cant understand what it would be like to *not* understand how the internet works, but to hear about it day in, day out... to be forced to use it at home and work... must be terribly alienating.
Thats the issue here isnt it. This is a scary proposition. The American system seems to have a problem 'deferring' to more learned authorities. If the USPTO and the Judiciary would simply listen to the 'geeks' (us) we'd all be allot happier - but it appears that the 'status quo' has a greater ability to bend the opinions of both bodies. It is mostly a display of a corrupt and biased system - money matters. Fuck logic.
98% of the Internet Public hasnt a clue about how Napster works. Their computers are magic boxes, the Internet a sea of confusion. Its really a strange existence that the
In the past, when there were massive shifts in 'reality' and 'existence' I wonder what it was like. Meaning: When I lived in the 'country' and went to 'the city' where there were (gasp) Electric Lights(!) I wonder what it was like to be the 'country folk' who didnt understand electricity. When 'country folk' were shown Fireworks and Gunpowder in ancient China, I wonder what it would be like being the Chemist who understood how simply the concoctions were - and I think we all know what it was like to stand back with the match staring at all the 'people in amazement'... how strange that must have been. How strange *THIS* is.
The Internet is a wondrous place - but to those who understand its construction, its basic elements, us, crap like this becomes very frustrating. Illustrating the analogy to the way napster works - to a 'layman' is an exercise in patience, 'they' *DONT* have the capacity to understand... simple items of your argument would require alot of explanation/education.
Until the world at large is better equipped to make decisions to 'legislate' Internet (or computer) technology in general - we can expect to see more rulings like these.
The only bad part about this, is that the Bourgeoisie that rule in America will have a chance to maintain the status-quo by buying favoritism long enough to ensure their future survival.
This ultimately is a display of a rigid, corrupt system incapable of 'new thinking'. America is growing more intolerant by the day - Technology issues will become a Pandora's Box of illogical/non-sensical legislation in the USA as an ignorant public is manipulated by lies.
Really very sad for Americans
I take it you have forgotten about public libraries. You can go in there and check out books for free. The book is purchased once, and everyone gets to share it (provided noone keeps the book and then owes library fees.) Napster really is different in that mp3's are not tangible objects, but the public libraries are the closest thing I can think of for books.
Mas vale cholo, que mal acompañado.
If you were watching Millionaire last night, you'd know that Lars' mental program would fit quite nicely in 640K.
That's still a few Vic-20s short of a C-64.
Fire and Meat. Yummy.
Is there anyway to get Lars formatted into a mp3 and just have him bounce on the net forever?
If only! Then, we could e-mail ourselves to work every day.
Course, I think Lars belongs on a heavily fragmented FAT16-formatted 100 megabyte Kalok hard drive with a bad spindle bearing...
Fire and Meat. Yummy.
Yikes! And I thought Slashdot was shoddy journalism!
Steven
-- I have marked myself unwilling to moderate-- I don't have other accounts to artificially inflate the karma of
Months later, I have quite a few singles, tracks that I would have never bought, except perhaps on a compilation. Would I have ever discovered the Gourd's "Gin and Juice" without Napster? Not likely. Despite the record company's protests, if I found enough songs to like, I bought the album. I ripped my CDs, some at home, some at work, and used Napster to transfer the MP3s from home to work, when I wanted a song or two. Life was good.
Now it looks like Napster is going down, at least for a little while, and I say thank you. My hard drive is stuffed with singles, sometimes multiple copies. Only one is a good copy, the rest are bad copies, mixes I don't like, bad live versions. Finally, I will have the time to go through them, weed out the bad ones, and put them onto CDs. I can think about a stereo setup that will allow MP3s to play over the good speakers. I will compile those playlists, for instant parties. I will finish ripping my existing CDs.
In short, I have some breathing room before moving on to Gnutella. Thanks, 9th Circuit Court of Appeals!
Gawd, what a terse docuement! Anyone else bother reading the ruling? It reads like well documented code, where the code itself was completly uncipherable.
Burn Hollywood Burn
Please, these shows are businesses. They maximize profits by appealing to the greatest number of people. If the News is liberal then they see the majority of their audience as being liberal. As it is, the shows are centrist and the vast majority of their audience is as well.
Shit, if John Stossel (evil ultra-liberal ABC/Disney 'member?) is a liberal I am the King of Siam. Get real and stop parroting whiney conservative pablum.
"Fortuna Imperatrix Mundi"
The only problem is that the music companies will say that their decreased revenue is due to "illegal file sharing over the internet" (not neccessarily Napster).
Actually, you can do a couple of things to prevent your hard earned dollars from reaching the RIAA and stil have full music enjoyment;
1)Buy used CDs. The studios don't get any money from this kind of sale.
2)Discover the perfectly legal activity of taping FM Radio. High quality receivers can be had at the thrift store for a song. Use metal tape, and use that to cut your own CDs.
3)Rediscover older music. Vinyl records are a fraction of the retail price of CDs at thrift stores and garage sales.
Between all of these options, you can throw a punch to the RIAA where it hurts. The secondary market is a big thorn for the RIAA (and one that they will continue to try to squelch)
The fact of the matter is that Napster was actually helping CD sales.
The only thing you can count on is the lies that the RIAA will spew forth in order to achieve total control.
Take the cheese to sickbay, the doctor should see it as soon as possible - B'Elanna Torres, "Learning Curve"
Could a similar workaround be done here? Imagine a scenario where the end user could do a search that would return the equivalent of URLs for various songs on people's host machines, and then do a simple cut-and-paste into a web browser or another application to actually start the download?
Firedog
My question is what is going to replace napster when it goes to pay only? Gnutella needs work.. mynapster is ok, But cutemx is my favorite so far. The funny thing is that by stopping people using napster, they make them use programs that can share movies... Then we'll a whole new bag... Just my opinion...
Monday February 12 1:18 PM ET
Court Says Napster Must Stop
SAN FRANCISCO (AP) - A federal appeals court ruled Monday that the music-swapping service Napster must stop trading in copyrighted material and may be held liable for ``vicarious copyright infringement.''
Then the information it stores can not be called a recorded music.
I have to wholeheartedly agree with you on that one. I also have played in numerous bands and know quite a few people who have gone on and signed record contracts. Invariably, in the end they come out poorer than they were before, even if they DO sell a lot of albums. Why, you ask? Because of this little thing called "recoupable cost". That refers to such things as recording studio time and basically anything you can pay for. The record company generally encourages the artist to stay in the studio as long as they need, to get every little detail perfect - which is a good thing on the surface. However, hidden in the contract is the clause that they have to pay back ALL studio time and other costs. This is generally taken from the already-meager percentage of sales profits that the artist is "entitled" to. Also, especially on the band's first contract, they have basically no artistic control over the album. The execs and promoters tell them what to play, how to play it, etc. So in the end you end up with music that probably doesn't reflect your band at all and a mountain of bills. But I have to say I'm EXTREMELY glad there are more people like pezpunk and myself who play for the fun and love of music. Sure it'd be nice to get rich - but that's NOT what music is all about. I copyright my music not to get paid for it but to make sure someone else ISN'T getting paid for it. I played in an orchestra for 7 years, practicing on the weekend and playing on Sundays every 2 months or so. I played in numerous bands who practiced in the evenings and played whenever/wherever we could find a place to plug in. I sweat away nights until 5 or 6 AM at my computer, writing a new song until my eyes fall out or the puter crashes. And why do I do it? Because I LOVE music. I'm not earning a cent - in fact most people who hear the music that I've written think it sounds more like a computer having a hernia than music. But I'll keep on writing, even if nobody ever hears it because it's fun. If you want to copy my music onto Napster, please do! Just make sure I get credit for it, that's all I ask. Now don't get me wrong that I think swapping free songs is a good thing to do. But when the artist doesn't receive jack $h1t for his recording, I see nothing wrong with it. Almost all artists I know earn their money almost exclusively from touring and make jack crap from record sales. From my viewpoint, it's GOOD to get your songs out there and listened to. For one, it says "Jack the damn record company!" and for another, the more people who listen to your music, the more who come to your shows where you DO make money. So in short, I love Napster as related to the current heierarchy of the recording and music industry. This could change if the whole industry was reorganized, but hey, let's face it, it's more likely that a blind quadrapalegic monkey will get a strike while bowling :P
"Christ what a design! I could eat a handful of iron filings and PUKE a better emergency pump than that!"
Now for the Epiphany
Some marketing genius is really missing the boat here. RIAA needs to forget about trying to rid the world of Napster and come up with a way to use the Internet to distribute music in a way that people will find beneficial and thus will pay for. Maybe it starts with Internet radio to get you hooked on a song, then make the song available for purchase. There's more to it than this, but when I'm sitting at my (BORING) desk all day long, I am much more likely to buy some downloadable CD than go to the store to get it. While I would much rather get the music for free from Napster - well, that's a problem for the marketing genius I spoke of earlier.
RIAA needs to stop whining and solve the problem on its own. USE the technology for mass distribution. Don't tell us we can order a CD online. Tell us we can download the CD for half the price (b/c there is no media cost, no shipping, no store, no guy at the register) and write the CD ourselves. C'mon guys, be creative...
the scary part of all this is that the case arose because the personal computer does not meet the limited legal definition used in the Sony Betamax case which defined a consumer recording device. so this is all being decided under the laws of two or more generations of equipment ago. and that is the scary part, because in essence we are being told we do not have freedom of press, speech, and association because we are not using a quill, yelling from the top of a hill overlooking the plain, and we are not wearing a common uniform and massed on horses under the same guidon. with little georgie w. bushleague IV and his buds in charge of deciding whether or not to update the laws, turn out the lights, this awful little court case casts a long, dark shadow.
if this is supposed to be a new economy, how come they still want my old fashioned money?
I have a feeling that the brief issues given already are trying to limit the Napster case to strictly Napster, and not trying to extend the result to an overencompassing decision for the Internet, because there's more issues at stake than just what Napster offers. By stating that the circuit court's decision is overbroad, this is a strong sign that the appealate court is avoiding a massive investigation of the copyright system and digital mediums.
"Pinky, you've left the lens cap of your mind on again." - P&TB
"I can see my house from here!" - ST:
Ok, so there is all this hullabaloo over Napster shutting down? Why should this even affect anything. I've always been curious over the far reaches of the American judicial system. Like sure they can state what is legal and illegal in the states but what is to stop someone from doing something offshore (ala: the internet gambling casinos etc.) But even aside from that all this focus is on Napster, so Napster dies big deal, they can't stop a movement of this size anymore .. you can equate it with the war on drugs, something that will go nowhere, sure they can bust Noriega or Napster but with that stem the flow? I don't think so. Hell there are still places out there like Audiogalaxy which have been around longer than Napster and also search a much broader base of files. If anything all Napster did was bring mass markey appeal of mp3's to the forfront. No one cared until mp3's became a commodity on Nasdaq.
Oh well my 2 cents and thats probably over pricing it.
"We direct that the preliminary injunction fashioned by the district court prior to this appeal shall remain stayed until it is modified by the district court to conform to the requirements of this opinion. We order a partial remand of this case on the date of the filing of this opinion for the limited purpose of permitting the district court to proceed with the settlement and entry of the modified preliminary injunction".
---
Napster pioneered 'peer-to-peer'
ROFL
--
A mind is a terrible thing to taste.
"A mind is a terrible thing to taste."
At CNN
Best Slashdot Co
If a computer were considered a "Digital Audio Recording Device" under the AHRA, that would mean that it would be subject to a RIAA tax on both the player (computer) and the media (hard drives, CD-ROMs). On the other hand, Napster-like activities would probably then be legal.
Since the vast majority of soundcard-equipped computers are beeping away in companies running Excel or whatever, and have nothing to do with MP3s, this would be a huge windfall for the recording industry, paid for largely at the expense of every business that uses a computer. So be careful what you wish for!
When I hear the word 'innovation', I reach for my pistol.
Besides all the fallacious arguments about how facilitating crime should be legal, my favorite part of this piece of rhetorical crap would have to be the "They don't have the capacity to understand" remark. Yeah, some people have used computers since they were ten while others struggle to learn the ropes. Despite your arrogant little worldview in which you simply dismiss these people as idiots, they're not bad folks. These same probably know that "alot" is two words. "Fuck grammar." Perhaps they even realize that there is a chasm between the legal interpretation of technology-rooted issues and the way technologies actually work in the real world. At least he remembered to stroke the egos of the knowledge-equipped ./-readers--the bourgeousie-elite of his whole warped I'm smart/you're dumb paradigm. /arrogant shit
(See quote below)
The only obvious error I found in the appelate court response is contained in this section. The appelate court interprets the home recording act as requiring that the primary or main function of a device be to create digital recordings. Computers, however, become misunderstood because they are, by nature, multifunction devices. A home recording device, such as a VCR, can easily be created out of a PC that only runs one piece of software and can be sold as such. Internet appliance devices are already made out of general purpose components and sold as "Internet only" devices although they can be modified easily to be general purpose computers.
There are many cases of recording studios that use general purpose computers running only recording and audio editing software. These computers must be considered general purpose in nature, although they should not be excluded from consideration as audio recording devices. The inclusion of a sound card capable of both input for recording and output of recorded or generated audio ought to include computers as being as capable of recording digital audio as a primary recording device.
- Michael T. Babcock (Yes, I blog)
it still boggles my mind that anybody could actually argue that Napster should be shut down: they don't even distribute any copyrighted material! all Napster does is to tell people where to get information; information that may be copyrighted.
last i checked, it's not illegal for me to go around telling people where to buy drugs. nor is it illegal to write a book telling people how to make pipe bombs. can anybody tell me why Napster is considered differently? as far as i can tell it's just people failing to see the parallels to existing situations only because they're ingnorant of the technology.
now you and i know that 99% of Napster users use the service to pirate RIAA music. personally i use it to distribute my own music (yes really, there are those of use who do this!), and to obtain obscure/out of print music. but regardless of how it's used, Napster still just provides information, and no actual files. if Napster were distributing MP3s themselves then it would be valid of course, but they're not. telling people how to do illegal things has always been protected under free speech: the Home Audio Recording Act doesn't even enter into it!
of course i'm still bitter about paying the RIAA every time i want to burn a CD of my own music. i guess i'd better get used to being stepped on by the RIAA.
- j
However, the Appeals Court did find that
In otherwords, just because Napster is currently used mainly for music piracy, that does not preclude possible future uses that are legal and commercially viable. Current uses are not the definition of a system. Thus, a shutdown of the service is too drastic a remedy.
The court also rejected the district court's interpretation of the Fonovisa (bootleg cassette flea market stall case) precedent, in that Napster's ability to police it's "premises" are not as complete as the defendent's in Fonovisa. From the case:
While the Fonovisa precedent is still applicable, Napster's knowledge of their users' files is limited, in that they only know the name of the file, not the content. The Appeals court determined that Napster's "premises" extend only to the file names, thus they must police file names to the extent that copyright holders require, but cannot be required to determine a violation by analysing the contents of a file, since that is outside the bounds of their system. The Appeals court placed the burden of identifying copyright violations on the copyright holders, but also said that Napster possesses and must exercise the power to remove the offending files/users from the system. Blockquoth Appeals court:
That last sentence seems to require that any contributory infringement suit would need to show systematic and willful disregard of violation notices, which Napster has been complying with.
Napster did lose on many substantive issues, but they got off pretty easy on the most important one- the extent of their responsibility is to be balanced with the responsibilities of copyright holders and violators (users :).
Some interesting points here are the last little caveat in the last paragraph of section eight. The first amendment ("fair use") claim made by Napster and used by many here was completely nuked by the court. It found that Napster users were not fair users and therefore the first amendment protections against prior restraint do not apply here.
In operational terms the modifications to the injunction are also interesting. Basically the court found that the original injunction was too vague because it put all of the burden on copyright policing on Napster. The court pushed most of the burden back to the copyright holder, saying that the RIAA, et al. must notify Napster of a violation to start the process in each case of suspected infringement. Napster then has to follow-through and nuke the content and user, but the court did find that peered content on decentralized systems cannot be held to a higher standard than the safe harbor provisions of the DMCA require given the reality of the architectures of such systems.
jim
AZI/Mojo Nation
While the new standard promulgated by the Ninth Circuit, that Napster may be limited, but only when: (1) it receives reasonable knowledge of specific infringing files; (2) knows or should know that such files are available on Napster; ad (3) fails to act to prevent "viral distribution" of the works, may be perceived as something better than simply affirming the District Court, Napster lost big on virtually every key substantive issue:
(1) Affirmed finding of no fair use by users;
(2) Affirmed finding of no substantial noninfringing use;
(3) Affirmed finding that sampling is not fair use or a substantial noninfringing use;
(4) Affirmed finding that Space-shifting in Napster is not fair use or a substantial noninfringing use;
(5) Affirmed finding of material contribution and vicarious liability;
(6) Affirmed finding that AHRA doesn't help Napster;
(7) Affirmed finding that DMCA doesn't help Napster;
(8) Affirmed findings rejecting waiver and copyright misuse defenses;
(9)Affirmed finding that $5M bond for injunction is sufficient;
(10)Rejected Napster's argument that injunction is inappropriate remedy, that a compulsory royalty should instead be imposed.
In short, this sets up a very nice position for the Plaintiffs, and compromises substantially Defendant's main advantages.
I anticipate applying for en banc review and/or Supreme Court review by Napster -- I seriously doubt they can survive going to trial under this new set of legal standards.
In short, while Napster isn't shut down today, unless a change is due, the grim reaper may well come around tomorrow.
Hey, that gives me a good idea -- why doesn't napster just publish a daily bulletin of which computers are hosting which files? That would be printed on paper, so it must be covered by the first amendment!! Get this much assured in court, so they know they have a right to do it.
Then, just for convenience, you can also publish this same list online once a day. Then, why not have a dynamically updated list of who's hosting which files at any given moment? Why not throw in some search capability? Then, why not make people register to use it, for marketing purposes? Hey, it's just a "music swapping" newspaper with an interesting companion website!
On news.com (CNET): Breaking News: Appeals court wants Napster injunction modified.
On cnn.com (AOL Time Warner): Appeals court upholds most of Napster injunction, CNN reports.
To be fair, my quick and dirty read of the injunction is that the appeals court agreed with the district court on almost everything and is just asking that the injunction be modified to apply some procedural polish (so CNN's report is more accurate), but I think it is interesting that reporting of the "same" story seems to differ depending on which pies the parent company of the reporting organization has their fingers in.