EFF To Defend Music Swapping Service MusicCity

MattW writes "Yahoo is carrying the CNET story that EFF has come to the defense of MusicCity, which produces peer-to-peer software, but does not run central servers as Napster did. EFF has a whitepaper on the Sony Betamax case, and it discusses the implications of various court decisions during the Napster case and their effect on it as a precedent. A MusicCity lawyer, who was responsible for the successful defense of the Rio, is quoted, astutely observing: 'This case shows more clearly (than Napster) that what the plaintiffs are most concerned about is control of technology. This is all about whether they can leverage copyrights into control over software development.' And that's truly what the RIAA's interest in Napster was about: not money, but control."

Comments

control IS money

[lyd]

Isn't the crusade to embed handicaps to file sharing of any kind into the OS more than enough evidence that control is the issue?

Make no mistake, control==money.
They do not want control, they want money.
They need control.

Trading copyrighted material is wrong.

[mosch]

Despite what everybody here wants to say, or how people want to spin it, the common way that software such as morpheus is used is ethically, and legally wrong. It's not fair use to give near-perfect recordings of copyrighted material to everyone on the planet. This is not the same as making a tape for your friend.

That being said, the software is not at fault. The RIAA may argue that it's an enabling the behaviour, but this bad behaviour can, and does occur through other means. There are entire mailing lists devoted to the trading of copyrighted materials via the USPS. This does not mean that the USPS should be outlawed.

Everybody should write your governmental representatives now, preferably with checks enclosed, to make sure that morpheus and the alike are not wrongly persecuted and prosecuted for behaviour that's beyond the author's control.

Re:Trading copyrighted material is wrong.

[Lysander Luddite]

"It's not fair use to give near-perfect recordings of copyrighted material to everyone on the planet. This is not the same as making a tape for your friend."

I'm ambivalent. Why wouldn't I want to make my recordings as near perfect as possible? That is after all the marketing spin fed to us to justify the move to CD in the past, and now DVD.

OTOH, yes, sharing it with the world is wrong IMHO. But wehre do we draw the line? Is it a specific number like 2, 50, 100? Is it only a non-profit use, for example trading or a give away? The fact that I can make a perfect duplicate in a small amount of time doesn't change the fact that I DO and should have the right to make copies for non-profit use such as gifts to a friend or backups. But it is a slippery slope.

I fear that the government (who is supposed to decide these matters) will side with the industry on this one either by makin a law prohibiting copies or washing their hangds of the matter by saying "let the market decide". Of course, either option means the distributors (not the creators or consumers) win.

Re:Trading copyrighted material is wrong.

[GreenCrackBaby]

So at what quality does it go from "it's ok for me to give this copy to you" to "you are a bad person" ???

Re:Trading copyrighted material is wrong.

[Lysander Luddite]

I agree and for the record, have never "shared" any music with somebody I never personally knew. That is my moral choice. But the issue isn't an all or nothing argument as the distribution industry wants to paint it. The court must decide the line where fair use ends and illegal activity begins.

Piracy is the word bandied by the distributors, but piracy connotes financial gain and I doubt that many users of P2P services ever saw financial gain. That is an issue that needs to be addressed in any court case.

Re:Trading copyrighted material is wrong.

[Anonymous Coward]

It comes down to this: blame the perpetrators, NOT the technology they use. Yes, trading music with others IS wrong...making copies of tapes for friends is, IMHO, wrong. Those who imply Napster got the shaft because we SHOULD be able to trade copyrighted music willy-nilly (including Napster's dumbass creator), and try to rub that point in the industry's face through presentation/marketing/etc., are only hurting their cause and creating bad PR, and should stop trying to help. The TRUE and mind-numbingly simple reason Napster and others shouldn't get the shaft is that they are merely file swapping technologies, which in and of themselves are not illegal. They have no control over the content of those files. Put it this way: cargo vans are used to haul illegal narcotics, so would it make sense to make cargo vans illegal? Hell no, that'd be stupid. A more relevant example would be e-mail: files, including recorded copyrighted material, can be attached and swapped that way as well. However, making e-mail attachments illegal would be silly. It's the *exact* same thing, and don't let anyone tell you otherwise. Go after those who misuse the tools, not the tools themselves. If that's too big a job for the music industry, well...life's a bitch. The commercial software industry has been dealing with this for years. I just wish people would quit using this whole thing as a means of exploiting copyright loopholes and pursuing some damn-fool idealistic crusade against copyright law, instead of pursuing realistic, much simpler and more powerful arguments.

Re:Trading copyrighted material is wrong.

[Erasmus Darwin]

"Piracy is the word bandied by the distributors, but piracy connotes financial gain and I doubt that many users of P2P services ever saw financial gain."

If there's a sale and I receive 50% off on the purchase of a $200 trenchcoat that I was going to buy anyway, then that's a net financial gain of $100. Everything regarding my possessions is the same as if the sale hadn't existed, except that I've got an extra $100 in my pocket. The gain comes at the willing sacrifice of money on the part of the seller. Of course the seller benefits, hopefully, by selling merchandise to people who wouldn't have bought otherwise, but in the case of someone who was going to make the purchase regardless, it's a win only for the purchaser.

Similarly, if I was going to buy a CD but instead grab the mp3s off of a P2P service, I receive a net financial gain equivilant to the purchase price of the CD minus the cost of not having the physical CD (which can be close to zero for people who almost exclusively use their legally purchased CDs in mp3 form and/or have a CD burner). Furthermore, this gain comes from the unwilling sacrifice of sales by the copyright holder.

Re:Trading copyrighted material is wrong.

[Lysander Luddite]

"Similarly, if I was going to buy a CD but instead grab the mp3s off of a P2P service, I receive a net financial gain equivilant to the purchase price of the CD minus the cost of not having the physical CD"

True. And this is a good point.

You are making an assumption here. You are assuming the individual would buy the CD if the P2P service was unavailable. You could just as easily make the assumption that had that service not been available the CD would not be purchased or the CD was indeed purchased at a later time.

Again, claiming a theoretical loss is disingenuine IMHO. There are simply too many factors and "what ifs".

In your example of the coat you could also assume the purchaser would buy 2 coats since he had allocated $200 to the purchase of the coat. The buyer could also walk down the street and pay $50 each for 2 jackets. There is no predicting the consumers bahavior and hence no way of determining the seller's loss. The only sure way of determining loss is if the coat was destroyed or stolen (never purchased).

Re:Trading copyrighted material is wrong.

[Grunschev]

A little flawed logic and a lot of assumptions.

First, you didn't "save" any money on the trench coat unless you didn't buy it. If you paid $200, you didn't save any money. If you paid $100 instead, you don't have an "extra" $100 in your pocket. You have $100 less than you started with. If you think you "saved" $100, try this: you can save even more if you don't buy the coat from me, because I'll sell it to you for $300. Bingo! You just "saved" $200!

There is no financial benefit to mp3 traders, unless they sell the stuff. There is (perhaps) a financial cost to the artists. That is the difference between what they actually sold and what they would have sold if there was no trading. But this is, of course, unmeasurable. It has even been argued that trading may increase sales.

Case 1: Much like I refuse to buy shoes I cannot try on for size first, I may not want to buy music I can't try out first. If I'm interested in artists that don't get radio play, and none of my friends has a copy, I may want to download an mp3 or two to try first. Without this opportunity, I won't buy. With the opportunity, I may buy. This would be a benefit to the artist.

Case 2: I really like a band that has a long discography. This band released dozens of singles with b-sides unavailable on the album. The singles are no longer available, unless I get lucky and find it used. If I buy it used, the artist gets: $0. If I download it, the artist gets: $0. Net cost to the artist: $0.

Case 3a: I'm really cheap and don't want to pay for any music, so I download it all.

Case 3b: I'm really cheap and don't want to pay for any music. I spend $8 on a used CD, rip the tracks, then sell it back to the store for $5 in trade.

Well, 3a and 3b aren't that different. I had to upgrade to broadband to get the bandwith to do 3a so my cost is an extra $20 or so a month. If I do 3b instead of 3a I can get several CDs a month for the same cost.

The RIAA argues that 3a is evil and should be abolished. By logical extension, they might as well argue 3b is just as evil. The net effect to the artist in both cases is the same. So let's make CDs like software and license the use rather than sell them, and prohibit their transfer in the EULA.

Igor

The problem is

[GreenCrackBaby]

The RIAA and Motion Picture Association of America argue that this case differs little from those against Napster, Scour and Aimster, other file-swapping services that have been sued or shut down. All three companies are profiting from the trades of copyrighted works, or "building a business on the back of piracy" as the trade group executives are fond of saying.

That's the problem with this....RIAA is actually correct. MusicCity, by serving up ads, is profiting from the piracy of content.

What we need is someone to drum up some Morpheus-like software, and to release it as open source sans-ads. Then RIAA cannot argue their "they're making money off our copyrighted works" and will have little hope of winning on those grounds.

hmph

[Anonymous Coward]

apparently this wasn't newsworthy on /. when MusicCity was originally sued, but now the EFF is involved, and suddenly it is.

If they start taking folks doing the trading away

[Anonymous Coward]

... They better start up the 'dozers and get their asses in gear, someone needs to make a crap load of prisons! Overcrowding is a problem now??? HA!

The Constitutional Bottom Line

[melquiades]

It's worth remembering in all of this that the US constitution grants congress a limited power to enact copyright law. Any such law must be design for the promotion of "science and the useful arts". The constitution does not grant congress any power of any kind to use copyright law to defend the profitability of corporations, or guarantee them that their business models will remain unchanged by technology.

So, ask yourselves, does file sharing -- the exchange of information on a scale far exceeding anything we have seen in human history -- promote the progress of science and the useful arts?

Does de facto control by coporations of the technology which makes this exchange possible promote the progress of science and the useful arts?

Re:The Constitutional Bottom Line

[Danse]

They don't, but we'd better hope that the court does.

Re:The Constitutional Bottom Line

[hublan]

So, ask yourselves, does file sharing -- the exchange of information on a scale far exceeding anything we have seen in human history -- promote the progress of science and the useful arts?

Not sure about the science bit. But I don't think I've ever bought as many CDs, or been exposed to as rich variety of music, since I started to use file swapping services.

As the lawyer said, it's a technology control issue, plain and simple. Not worth arguing otherwise.

RIAA doesn't give a hoot about the artist, even though they use that as their main defense. As an example, I met the singer from Twisted Sister (a massive 80s band for those of you born after 1985) working in a t-shirt shop in New York, looking rather sullen. Never saw a penny from the "benevolent friends of the artists", the music publishers, which RIAA is the front for.

And by the way. It's not pirating, it's copyright infringment. Totally different issue even though the ??AA people would like the public to believe otherwise.

Re:The Constitutional Bottom Line

[namespan]

The constitution does not grant congress any power of any kind to use copyright law to defend the profitability of corporations

The problem here is that the prevailing wisdom is that the arts/sciences are most advanced when profit from them is assured. And profit (again the prevailing wisdom goes) is only assured when people tightly control the rights to use their discovery. It's hard to completely argue that viewpoint away. Profit is a powerful motive that works in a lot of cases.

So if you want to argue the case in the current political climate, you have to be able make an economic case, or make a truly compelling case to the average individual that some legitimate rights are being taken away.

Re:The Constitutional Bottom Line

[krlynch]

It's worth remembering in all of this that the US constitution grants congress a limited power to enact copyright law.

From the great document itself:

Article I, Section 8, Clause 8: [The Congress shall have Power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

As has been pointed out in the past on Slashdot, note very carefully that "limited" applies only to the time duration of the copy and patent rights; the Constitution explicitly gives Congress the power to grant rights of any scope as long as those rights are limited in duration, and as long as those rights do not infringe on any constitutionally protected rights.

The constitution does not grant congress any power of any kind to use copyright law to defend the profitability of corporations, or guarantee them that their business models will remain unchanged by technology.

I don't see that restriction anywhere in the Constitution; if Congress believes that such a provision would "promote ... science and the useful arts", it certainly could use its copyright power for such purposes. However, I challenge you to locate any section of the U.S. Code that actually authorizes the government to do that. What you will find are provisions in the Code that "secure for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries", and that among those Rights is: the Right to transfer of copyright (from artist ot music company); the Right to restrict the forms and methods by which those writings and discoveries are initially distributed (they aren't required to sell scribed wax cylinders or vinyl records); the Right to encrypt those writings and discoveries and to solely distribute the rights to decrypt them under terms decided by the holder of the copyright (DMCA); and many others rights.

Whether these Rights that have been granted by copyright law satisfy the Constitutional requirements is not clear, as they haven't been tested in court, nor is it clear that they are good public policy; you and I may not like them, and you and I may think that some of them go too far, but it is not at all clear that they are unconstitutional (I would guess that most of them ARE constitutional, but bad public policy). And even if the law satisfies I.8.8, it is not clear that it doesn't violate some OTHER portion of the Constitution (some claim First Amendment rights are violated, others claim Fair Use and First Sale are constitutionally protected rights, just like the right of privacy), or if the law is in conflict with other legislation in certain circumstances (DMCA appears to many of us to conflict with the fair use provisions of the rest of the Copyright Act). I certainly think that some of the provisions of the DMCA are not Constitutional, but not because they violate the Copyright Clause.

All that aside, claiming that the law has been written to "defend the profitability of corporations", or to "guarantee ... business models" is, frankly, silly. If that were the case, then the protections in the law would not apply to you and the things you create or discover (since you aren't a corporation); and the protections most certainly DO apply to you. That you don't like the way some corporations are utilizing their granted copyrights has no bearing on the question of whether the granted rights are Constitutional; certainly, I don't like the way government contractors are required to bid on a project as if they were a union shop even when they aren't, but that doesn't mean the laws requiring such things are unconstitutional.

So, ask yourselves, does file sharing ... promote the progress of science and the useful arts?

Certainly this is irrelevant to the copyright argument! Sharing files may or may not promote progress; sharing of copyrighted sound files without the express permission of the copyright holder, even without the DMCA, is certainly illegal, and making it so was certainly within the purview of the Congress -- that you are using FreeNet instead of SneakerNet, or that you are using mp3 instead of analog-casette, simple changes of technology, doesn't make it any less illegal. The technology in this case is irrelevant to the legality of exchange; the Napster case (and all other similar cases) was not about technology, but whether by being an enabler of copyright infringement to the near exclusion of all other business, Napster was an infringer itself. The question of whether copyright infringement itself occurred was never questioned by anyone associated with the case, because it was crystal clear that infringement had occurred. Trying to hide from this fact and claim that Congress doesn't have the power to make that type of infringing illegal is only going to get you ignored by the public, the legislators, and the courts.

Re:Not a very nice description of EFF

[null_session]

I'm not sure what is bad about representing hackers, cryptographers and computer scientists. I guess you have already fallen for the media portrail of hackers, cryptographers and computer scientists as criminals and deviants. To my mind, at least, it would be an accolade to say that someone represented hackers, crypographers and computer scientists. Better that than lawyers, congressmen and fbi agents.

Re:Surprising. :)

[frank_adrian314159]

How are they going to stop these services? The fact that there is no clear person responsible for the content of the services except the users themselves makes it difficult...

Easy. They'll use a three pronged approach:

They'll start at the highest tier, making large ISP's kick out any user who shares P2P under threat of suit.

They'll sue any major directory provider as an enabler (see the Music City suit).

Finally, if there's anyone still sharing files to any noticable extent, they'll go after them individually.

Remember that the RIAA doesn't need to completely stop sharing to win. They only need to make it dificult enough that most people don't go to the bother of doing it. They don't plan to win via eradication, but by attrition...

RIAA is going to buy out FastTrack...

[mmacdona86]

and then Kazaa, Morpheus and MusicCity instantly become irrelevant. FastTrack is a small company in it for the money. The record companies could make them happy probably for less money then they would spend in legal fees suing the other companies.

FastTrack will probably announce its new, "rights-protecting" software at about the same time that the record company-sponsored download sites become available, so its large customer base will be in the lurch and vulnerable to being picked up by the record companies.

EFF should save its resources for defending file-sharing based on Open Source software.

Re:Surprising. :)

[Sheetrock]

The RIAA doesn't need to prosecute everybody using the systems to win; they need to make it impossible or at the least inefficient to copy material rather than to buy it. One way that they seem to think will be effective is to blast away file-sharing services using their massively superior legal budget -- but as you mention attempting to carry over this attack from the companies or individuals providing these services to the individuals using these services isn't feasible, particularly when you're talking about completely peer-to-peer filesharing with no central servers (like Gnutella).

Their other tactics are more frightening, however. They are already coercing software and hardware manufacturers to add copy prevention and access controls to their products. They are trying to get laws pushed through to mandate these controls in products in which manufacturers are not already convinced to add them. I am not convinced that they aren't lobbying Congress to make file sharing using peer-to-peer methods (without some form of RIAA or government surveillance) illegal as well; and just as their other ideas have proven to be damaging to our rights well beyond simply protecting their material from massive copying (by, for example, getting Congress to give their tacit approval to copyright holders defining what fair use is on a per-product basis via the DMCA) I sudder to think about what plans they might have for us in the future... but I have little doubt that the EFF will once again be integral to whatever defense we can put up.

Re:P-2-P for Linux Distributions...

[O2n]

Why hasn't Morpheus been used to distribute new Linux distributions

For exactly the same reason they didn't use windowsupdate.microsoft.com : completely different audience, completely different content.

Although I agree it would be nice idea, you'll see that a surprisingly low number of people would agree to share the redhat iso images compared to the ones ready to share pr0n.

-- I am not a troll

Money is the nerve for war

[tcc]

Does EFF has a Paypal donation address or something similar without having to go thru all the problems of writing a check putting it in an envelope and actually GO OUTSIDE to mail it? It would be really useful and I encourage people that support the EFF to do the same.

Timelapse recording is legal in my book. Swapping movies over the net wouldn't be happening THAT much if the crap they shove at us would be worth seeing in a theatre... I go see movies about every week or 2, so I am a customer, and that gives me the right to complain as well, there will always be pirates, you will never get rid of them, but Movie swapping over the net wouldn't be happening that much if the DVDs would be set at a reasonable price and the movies themselves WORTH SEEING ON A BIGGER SCREEN. I won't repeat What I said in a previous similar post again but for god's sake, put up some better content to protect in the first place!

RIAA, I won't even talk about them, I don't wanna reduce de lifespan of my $9.75 keyboard for that subject :).

Re:Difference?

[sam@caveman.org]

actually it is different - and don't ignore me because i disagree, because in principle i'd like to believe that 'MusicCity' has substantial, non-infringing use, but in truth it doesn't. photocopiers are primarily used to copy things which are allowed to be copied - to make 100 copies of a resume, to make 500 copies of a flyer, etc. 'MusicCity' and most of the other 'file sharing' networks are primarily used for the purpose of copyright infringement - worse, most were designed with the explicit goal of easily infringing the copyrights.

whether you or i believe copyright infringement is bad is irrelevant. the law currently exists to prevent this kind of thing, and those who feel they are being hurt by the activity (of course this is debateable also) can ask that the law be excercised.

-sam

Music IP law should be dead by now!

[Computer!]

Before I get started, here's two of my favorite quotes from the article:

At a speech in Washington, D.C., she told software developers that it was only the specific illegal use of the software that the group is trying to stop, asking them to help develop applications that respected artists' rights to be paid.


Thanks for asking, but when was the last time the music industry spoke out against software piracy?! I just thought their cries for help were funny. Also:

The question is...whether they'll respect what artists create just like we in the recording business respect what the business sponsors and software developers in this audience create.

Great idea! I think what the RIAA needs is a good 'ol fashioned audit. Let's track down the license for every Pro Tools plugin and MIDI utility, make sure every copy of Word is official. I bet they've got Morpheus on their boxes!

Now, here's why the whole thing is an issue. Back in the day (pre 20th century), musicians made their money on performance. When people showed up to watch, they got paid. In order for this to work, there had to be lots of moderately-paid musicians, and only a few starving, or well-paid ones. If you were good actually performing, you became successful. Enter the age of 78s and radio. All of the sudden, musicians could make money without even showing up! Once a master recording was made, it could be duplicated with little effort (relative to cloning the musician and his band), and played over and over, for fans around the globe. In effect, record companies were granted a license to mint currency! This wasn't a big deal at first, since live performances, and the music audience in general, were small. Now with the mega-tour, and packaged crap being pumped into our ears by sleazy record execs, it is time to make a change. If you can't make money by touring, you need to hang it all up. It's time to bring the performance back into music. It's obvious that IP law won't stop 10 million people from listening to your music for free. As an artist, you now have the opportunity to dump the whole distribution channel and still make a decent living actually playing music for a live audience! Think of how much more integrity the business would have. No more gold records, only an artist and his axe (or tuba, or whatever). When that artist dies, we all have the right to enjoy his art forever, without interference. Think about that right there.

Re:RIP - Sam the Record Man

[irix]

Do you live in Canada? I do, and I haven't bought any CDs there in a long time. Why? Too damn expensive. They were selling CDs at a buck or two more than FutureShop, WalMart, CDWarehouse, etc.

CD sales are up over the last 5 years. Even if you consider that they are down somewhat this year you have to consider the overall economic climate.

Sams went under becuase of poor business decisions, not becuase of Napster. Quoting some clown who brings his laptop to parties doesn't change that.

Stealing music is wrong, Music City is right

[tuxlove]

I fully support the RIAA's right to not have music stolen and distributed for free. Downloading music you haven't paid for is just plain wrong.

I also support the right of services like Morpheus to exist. Internet users should have the absolute right to distribute their files via the Internet, and whether they do it via FTP, HTTP or FastTrack technology is irrelevant. They're all one and the same.

What I don't support is users distributing copyrighted works. You shouldn't do that! Bad copyright infringer!! That said, shouldn't it be the fault of the copyright infringer, not the developer of the technology that allows file sharing? Else, FTP, HTTP, etc. would all be illegal, and we know how stupid an argument that is. While we're at it, why not ban TCP/IP too, because that's how all the data gets passed around. And ISPs and Internet backbones should also be nuked because they are the ones responsible for enabling users to pass around TCP packets.

It seems plain and obvious to me, but unfortunately legal issues rarely end up being simple. I could actually see the RIAA winning a case against Music City. The stupidity of our legal system cannot be underestimated.

It's for that reason that I think the RIAA should go to hell. They would gladly snuff out anything they consider detrimental to business, regardless of how legitimate it is; and they would do so using any underhanded legal method available to them (and even possibly illegal methods, if some of the RIAA memos floating around can be believed). I sympathized with their stance against Napster, mainly because Napster could only work with MP3 files and was plainly designed for stealing music for free. Services like Music City work with any file type, and are so general-purpose that they cannot be faulted. Until the RIAA comes up with a way for file sharing services to determine the copyright ownership of a music file, generic file sharing services should be allowed to list any file they want. Until such capability is made available to them by copyright owners, they should be bound by all the same rules as bind any other file transfer protocol.

In other words, if a user lists illegal files via a web site, FTP site or Morpheus node, it's that user's responsibility and nobody else's. Music City has no way to tell what's legal and what isn't. And frankly, neither does the RIAA, since the technology does not exist to verify music with reasonable accuracy and in a timely fashion. You can't use filenames alone, for obvious reasons.

My internal conflict rages on. Even though I feel the RIAA has a right to not be ripped off, their methods of protecting themselves are beyond evil. We've heard all about their exploits over the years, but the one that really pushed me over the edge is their plan to copy-protect all CDs produced after Q1 2002. That's right, they are planning on releasing only CDs that, in theory, can't be ripped. That effectively stops my ability as an actual paying customer to make personal copies of music I've paid for. The most evil part is that not only are they doing this in a vain attempt to keep people from distributing music illegally, they're also trying to force consumers to buy their music a *second* time if they want a digital copy. And, of course, if you do buy that second copy, it will be protected via some DRM mechanism that makes actually listening to it on your own computer or digital playback device a chore.

It's because of this that I've actually started using Morpheus. I'm sorry to say, but I've caved in. I never used Napster for ethical reasons, but even people of principle sometimes have their limits. I just can't stomach supporting a cause which is so evil, even if the evil springs from a legitimate grievance. Spank me, I'm a copyright infringer.