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Napster Finally Gets a Break
jark writes "Wired News is reporting that 9th District Court Judge Marilyn Hall Patel ruled that the five major record labels must prove they own thousands of music copyrights as well as prove those copyrights were not used to monopolize and stifle the distribution of digital music. " Definitely a twist
in this ongoing saga.
"Patel has not impressed me with her keen wit and insight. Sorry."
Patel has been a cluefuck all along, but lets not forget that she should've been ruling based on the LAW all along.
But what we got is a judge who is very open about her *personal* feelings about Napster and found rules to support her gut feeling.
She's exactly who shouldn't be a judge.
If so, as much as I dislike this tax, then this isn't much of an argument. Very few mp3s end up on Audio CDRs, and even fewer on Audio DATs (unfortunately, as good as DATs are, they never really took off.) Why? Because, IF it's burned onto a CD at all, it's burned to Data CDs, which have no such tax. Audio CDRs cost several times as much as Data CDRs exactly because of this tax, therefore the only people who use them are typically those who must -- those who have audio burners (NOT computers!) that require them.
I imagine that there's a few people who downloaded music with Napster and then played it via their sound card and then recorded that with an Audio CDR device, but this number is almost certainly dwarfed by those who burned it directly on their computer -- it's cheaper, uses more common hardware, and delivers better quality.
The argument that the Napster lawyers are making is that the labels don't actually hold the copyrights anyway since the artists were essentially working under contract as freelancers. If this is the case then the copyrights would revert back to the artists.
my understanding of the matter is that the "artist" owns the rights to the song itself (i.e. the lyrics and notes and arrangement of them) but the record company owns the rights to the recording itself. that is, the copy that is on the cd. they are suing over the use of that particular recording because, in most cases, the files traded were ripped from CD recordings. if, however, it is a recorded live bootleg or something along those lines, the record company (to my knowledge) has no control over it.
"I can't understand why people are frightened by new ideas. I'm frightened of old ones."
But in the recording industry, the "artist" is almost always forced by contract to pay all of the expenses for recording, distribution, promotion, etc. I think that should mean the creator is the employer, with the recording studio et al being merely service providers.
These are the types of things that you look at to see if someone really is an employee - if they are not, then it is unlikely that the work will be a work for hire. So yes, there is a good chance that in the situation you describe the artist will not be considered an employee and, unless some other work for hire doctrine might apply, the record company will not be able to claim author status via a work for hire theory.
But, remember, work for hire is only to establish who the "author" is - the copyright rights (right to copy, distribute, perform, etc.) can still be sold. Thus, the recording contract will specify that the artist's work is (1) a work for hire - good chance this is void and ineffective, and (2) assigned fully to the record company. An assignment can be thought of as a sale of rights - so I pay you, the artist, $x advance and y royalty, and in exchange you assign all ownership rights in the copyright to me, the record company.
At the end of the day, the record company is going to own the music (if they can convince an artist to sign a properly-drafting recording contract).
If they had their way, I know of at least a few radio stations that would be shut down.
Well they are, and the entire digital music radio business is seriously compromised.
DZM
I will note that since the heyday of Napster, the diversity of available files has gone down. More obscure/fringe acts aren't as available as they used to be, and this actually means a reduction in my CD buying patterns - previously, I had used Napster as a method of discovery for new and unusual music, often by browsing the collections of people who had music that I liked. I would say the RIAA had shot itself in the foot, except that they never represented those less mainstream acts to begin with: they just want to maximize the number of people who buy Brittney Spears and Garth Brooks CD's.
as I was scrolling through the thread, someone was talking about artists that have sued the RIAA about copyright issues. one of the artists named was Dr Dre. for those who arent familiar with his work, before his "chronic 2001" album was released last year, he put up mp3's of *ALL* the songs on his website and offered them free-of-charge. granted, he was probably hoping that people would d/l the tracks then go out and buy the cd when it was released, and as far as I know, people did *BUY* the cd.
the history of the world
it is important for 2 reasons.
1, it gives napster ground to sue for damages, much like Be. This is a nearly identical misuse of a monopoly like in the micrsoft antitrust case.
RIAA has been far more heinous then microsoft 'tho, they have been raping both consumers and the artists they claim to represent.
2, this could actually move to give the rights to music back to the artists, opening market doors and oppurtunities to all the little guys.
maybe we'll find some real services opening up that offer real music instead of the backstreet boy wannabes we have shoved down our throats on every public channel. maybe this will unhinge RIAA and halt their attempts to squash streaming audio sites (shoutcast radio stations), etc.
but then what's the chance that could happen in the land of the dollar.
my $0.02
- tensions in our lives that are attacking our minds, unite themselves together to make our consciousness blind - op'ivy
In particular, the Supreme Court said that a copyright holder does not have the right to ban a technology with a significant legitimate use, just because the technology may also have other, infringing uses. Timeshifting is legal Fair Use (that is, a copyright gives a studio no right to ban timeshifting); therefore, VCRs have at least one legitimate use and cannot be banned.
You're confusing several things:1. The notices written on the tape by the record company or studio. These notices tend to be quite restrictive, and often forbid things that the vendor does not have a right to forbid. (A good example of this would be a notice forbidding you to lend a tape to a friend, where no copying is involved.)
2. What is or is not allowed by actual copyright laws. Copying a prerecorded videotape for a friend would probably violate the law (although it is hard to say for certain). In the case of an audio tape copied on analog gear or on SCMS-crippled consumer digital audio gear, the AHRA would make any infringement non-actionable. That is to say, the record company theoretically could not sue you for it. The record companies, of course, argue that this anti-lawsuit protection does NOT extend to computer CD burners (which may legally record audio without the burden of SCMS).
3. What is or is not allowed by the DMCA. The DMCA prohibits "bypassing technological protection" even when you have a legal Fair-Use right to copy the "protected" material.
4. The chances that someone will catch you and prosecute you.