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

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.

[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.

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.

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

[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: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.

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 :).

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.