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

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

[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.

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.