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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, who called both sides "dirty," said that Napster's misguided attempts to build a business using illegally obtained music paled in comparison to what could be massive misuse and heavy-handed tactics by the recording industry.
Please tell me that the future of digital music on the Internet is not being decided by someone who is arbitrating the decision based on which side is more morally repugnant.
What about applying old standards? Interpreting existing law to a new medium?
Patel has not impressed me with her keen wit and insight. Sorry.
Loneliness is a power that we possess to give or take away forever
Napster is dead. Put a fork in it, it's done.
But what of Gnutella/BearShare/LimeWire? What of KaZaa (sp?) or mp3.com?
The pont is, if Patel finds that the 5 music companies have stifled legitimate competition, then other legitimate competition may return.
Sure, Napster is dead, but once a precedent is set, nothing's to stop someone else from setting up a clone service. Clearly, the demand is still out there.
But this would go as well for any other music sharing service. So, it's not really a failure in that regard. Also, it's a loss for RIAA, which is enough to make me raise my voice in song. Let'em try to take that away.
A feeling of having made the same mistake before: Deja Foobar
I am suprised that the blank media 'tax' already paid for the music being copied on Napster argument has not been raised.
Fight Spammers!
"prove those copyrights were not used to monopolize and stifle the distribution of digital music"
I had problems understanding this phrase until I got to the second to last paragraph in the article:
"Napster lawyers have alleged the record industry withheld their copyrights from digital music services until three of the major labels could launch MusicNet. Once that service was launched, just days after Napster was shut down, company could only obtain wildly restrictive licenses to sell music. "
So THAT's what this is all about... The record industry isn't against digital music, they're against anyone besides themselves making use of it. If they had their way, I know of at least a few radio stations that would be shut down. Where does it end? Am I going to have to change to the Sony-owned radio channel to hear the latest music???
Why would the judge do this? Quite simply, the judge wanted the plaintiff to win, and wanted to keep the defendant from being able to appeal the decision. And if the judge sustained every single one of the defendant's objections, the defendant had no grounds for an appeal.
That is what appears to be happening here. Judge Patel, a jurist who has most decidedly taken the side of the plaintiffs in the Napster case, wants to make her decision airtight. There's no way that Napster will be able to appeal the decision to the Supreme Court if she allows the defendants to explore every possible line of defense before they lose the case. It's about giving them a fair trial and letting them prove they are not liable - and when they are unable to prove they aren't liable (they really are liable under the DMCA, like it or not), she will return the verdict that puts them out of business forever.
Not that Napster is an issue anymore, anyway. They have been supplanted by several services that are more resistant to legal and network attacks and do not attempt to extort a monthly fee out of their users for access to materials that they have a basic right to download anyway.
/fug
Throw off the shackles of copyright law.
In most cases, the copyright to a song is held by the person who wrote it, not by the record company. But, except for a couple of jerkwads like Metallica and Dr. Dre, no musicians have filed copyright complaints against file sharing services.
the article brings up some interesting points. although napster is currently pretty much dead in the water, it seems that the company may get some sort of compensation do to the anti-competative practices of the record lables.
"MusicNet did not suddenly appear full blown from the head of a fictitious entity. The evidence suggests that plaintiffs formed a joint venture to distribute digital music and simultaneously refused to enter into individual licenses with competitors, effectively requiring competitors to use MusicNet as their source for digital licensing."
granted, i am not a lawyer, but it would seem that napster would have some recourse if monopolistic/anit-competative practices could be proved, and napster may have a solid future (or others) in the pay-per-play area of online music...
-ryan
This is good news, but it is too late for Napster. The damage has been done to it, its effectiveness as a file sharing program has been taken away, and the users have moved on to other services such as Morhpeus, Kazaa, and Limewire. Fortunately, this next generation of file sharing programs is more decentralized, so even if the RIAA lobbies against them and sues them, there will be little they can do to stop them. Plus, Limewire and the Gnutella protocol are open source, so anyone could just take them and make changes in order to make them legal again if difficulties came up.
Once information is out there, there is no going back, and no removing that information. The public is thirsty for these file sharing programs and knowledge of them will prevent the companies from stopping them forever, and when they do stop them new ones will come out. Eventually, even their corporate lobbying will be in vain, and buying politicians won't do anything to stop the flow of information.
Napster is dead. Put a fork in it, it's done.
But it's breaking the ice for the other sharing technologies. We still need to show our support without giving into their tracking and monitoring,
"In contrast, (the record labels') allegedly inequitable conduct is currently ongoing and the extent of the prospective harm is massive. If Napster is correct, plaintiffs are attempting the near monopolization of the digital distribution market. The resulting injury affects both Napster and the public interest."
At least Judge Patel sees that the RIAA is not actually acting in the interests of their artists, but in the interest of their wallets.
It's like claiming:
Netscape is DEAD. Supplanted. No longer important.
Be is DEAD. Supplanted. No longer important.
OS/2 is DEAD. Supplanted. No longer important.
Who cares about the Microsoft trial?
GPL Deconstructed
More interesting than proving that they own the songs (they may not own all of them, but they certainly owned some that were traded), was this quote:
"[The] plaintiffs are attempting the near monopolization of the digital distribution market. The resulting injury affects both Napster and the public interest."
I hadn't thought about it in terms of monopolizing means of digital distribution.
Anything you can do, I can do meta.
Comment removed based on user account deletion
Comment removed based on user account deletion
Possible criminal acts of the music industry are relevant as they are important to the continuation of the culture.
I noted a comment above that this is unimportant, because napster is dead, etc. Sort of like saying that murder is unimportant because the victim is dead and you can't bring the victim back.
Wrong. Unless you _like_ a world run by crooks, or are something of a crook or a criminal yourself.
"It is a greater offense to steal men's labor, than their clothes"
"The crux of Napster's copyright ownership argument revolves around a strange clause in copyright law called "works-for-hire," which essentially determines who owns the songs and albums. Any work of art -- in this case, music -- commissioned or created by an employee of a company becomes the property of that business. For example, reporters who work for newspapers don't own their stories."
Although not 100% legally accurate, the point is that the ownership of copyright for something you don't create is basically a function of contract law - i.e., the recording contract. Most companies who pay for the creation of IP (record companies, software companies, etc.) attempt to argue and contract themselves into a "work for hire" status - which means, essentially that they (the company) are the author in the eyes of the law.
However, work for hire, as the article states, is a doctrine that is controlled by statutory tests - simply saying something is a work for hire (even if the artist agrees to that in a contract) doesn't make it so.
So what if it isn't a work for hire? Traditionally contracts have a back up assignment of rights. The problem is when such an assignment does not cover rights that, for example, don't exist at the time the contract was written. Imagine a contract written in the 70's - it obviously isn't going to assign rights to digital distribution to the record company.
This comes into play in other industries - the publishing industry has recently had this problem with old author contracts where the author assigned all rights to publish a work "in book form" (standard language in older publishing agreements). Courts have found that electronic book rights still belong to the authors (or their estates).
Of course, the lawyers now use a simple addition to the assignment along the lines of "in all media whether now know or hereafter developed" to show that the assignment is everything now and in the future.
I hope Hilary Rosen cries herself to sleep at night saying "God, if only I'd left those poor college kids alone back in 1996!" (OK, not really. I'd really rather see her visit the Sonny Bono memorial tree at about 100 miles/hr.)
One CPU cycle wasted on digital restrictions management is ONE TOO MANY.
The difference is that napster never tried to get licences before launching, Myplay spent their whole life in negotiations with record companies but rotted away.
Shame - they were the best group of peopel I ever worked with.
The Recording Industry setttled, to avoid having to do this very thing....that was brought up by the attorneys for MP3.com. This will mostly be the same scenario here as well. The case is somewhat moot anyway. BMG owns the majority equity stake in Napster as I understand it, so it would be in both parties interests to settle. Except for the fact that the DOJ is looking into anti-trust allegations of the RIAA and members. (collusion). Once the Recording Artists Coalition filed an amicus brief on behalf of Napster (and the RAC doesn't like Napster), I think that Judge Patel woke up. The artist who the RIAA claims to represent say the RIAA doesn't and can't because they don't own the copyrights.
If a court decides that the record companies misused their copyrighted materials, they could technically lose those copyrights. Probably won't happen, but it would be so funny if it did...
Napster may have lost the battle for its own life, but they won the war in how they forwarded a simple idea that has largely become accepted by the masses:
In other words, if it's digital, it's free and swappable, whether legal or not. And nothing can stop this phenomenon. Nothing.
The pussy is outta the bag.
Steve Magruder, Metro Foodist
That's bullshit. Napster can add all the features of the decentralized networks (save for their distributed nature). Download from multiple sources would be a trivial hack. What advantage would Napster hold over, say KaZaA? One thing: speed and reliability. I'm on a reasonably fast connection here at UMass, and I rarely see/saw a rate with Gnutella or (before giFT was blocked) FastTrack that was even half of what my average Napster download was.
People will go back to Napster if it comes back like it did before (especially with features like bandwidth aggregation). With less hassle and faster speeds, I'd say it's a given.
Lets get a few things straight:
#1.) Most moderately talented and experienced 'hobby musicians' (like the guys who play at small local bars/clubs/restaurants), with some practice, can play any popular (cover) song live just as well as the original musician(s), occasionally better.
#2.) It is not hard to write good original music.
#3.) Professional quality home recording is a reality and is not cost prohibitive for the vast majority of the US population.
#4.) There is no shortage whatsoever of good to excellent musicians and singers.
#5.) The vast majority of musicians perform for little or no pay simply because they enjoy doing it.
Let me summarize in one statement: Music should be a pasttime, not a career!.
So.. why do we need record labels and celebrity performers, again?
I'm reading between the lines here, but this development in the Napster case seems to parallel something that recently occurred with online internet rebroadcasts of radio programs. These rebroadcasts were temporarily suspended because, for the most part, the contracts between the on-air talent did not allow for rebroadcasting (these contracts were written prior to streaming audio was developed). Essentially, the work of radio on-air talent was being rebroadcast without them getting paid for it.
This RIAA mess seems to be this: Not all artists have assigned their copyrights to the record labels. Some of these assignments may rather be in the form of licenses which do not extend to internet rebroadcasting rights. This, even if RIAA members may have the right to publish music, they may not necessarily have the right to rebroadcast that music on the internet. If they do not have that right, then Napster is not interfering with that right.
Of course this does not get rid of the whole case. There is certainly much music out there of which the copyrights are owned entirely by RIAA members, and the RIAA lawsuit would still be valid with respect to this music.
144l. ph34r my 133t l3g4l 5k1lz!
For those saying the artists own the copyright...it isn't that easy. The artists would like to, and should, own the copyright, but the record labels say they own the copyright (well, I'm sure there are some artists that manage to keep their rights).
Here is how it basically works: The artist is loaned money to cut an album. Artist's song goes to number 4 on the charts. Before artist sees a dime of the money, all the money "borrowed" for recording and marketing costs must be paid back. The label that picked up the artist now claims copyright to that recording (in most cases). And get this, the reason they say it is their recording and not the artists', is because they say they put up the money. When in reality, the artists have to pay back the money that the recording company LOANED them!
I work for someone that just wrote a somewhat popular country song. He said the record company owns the copyright for the recording of that song. The band that recorded it -- Perfect Stranger -- can perform the song live, record the concert and sell copies of that recording, go to another studio and re-record the song...but the copyright to the song that is being played on the radio does not belong to them.
Jay
Ron Paul
Maybe Steve Jobs gave her an iPod for Christmas?
Judge Patel, a jurist who has most decidedly taken the side of the plaintiffs in the Napster case, wants to make her decision airtight. There's no way that Napster will be able to appeal the decision to the Supreme Court if she allows the defendants to explore every possible line of defense before they lose the case.
I will join the long line of scholars, lawyers, and laymen who rightfully criticized the Napster opinions, not for their politics, but for their inartful application of an incompetently-drafted law. Judge Patel's previous opinions have been nothing for her (or, more likely, her law clerks) to be proud of.
That being said, hearing such conspiracy-theories that a life-appointed judge is somehow "in the pocket" as opposed to just plain incompetent advanced by some, including those who claim to be law students, is nothing short of irresponsible.
Not to mention incorrect. As some, including Mr. Fair Use Guy, have wrongly suggested, Patel seeks to insulate her opinions from Supreme Court appeal.
One who claims to be a law student should know that Patel's decisions are appealed first to the Ninth Circuit, and then to the Supreme Court. And while the three-ring-circus-like Ninth Circuit is wholly unpredictable, capable of disputing ruling such as whether the sky is blue, the Supreme Court would not touch the over-litigated quagmire that is Napster with a ten-foot whatever - it not federalism, there's no circuit split, and there's not a damn interesting issue to be found in ten billion pages of pleadings.
It will be a cold day in hell before the Supreme Court agrees to hear any of the Napster decisions. Jerry Falwell will smoke crack before the Court hears Napster. John Katz will write a useful article before the Court hears Napster. Microsoft will release WinXP on a GPL, disco will return, and someone will actually mod up one of my postings before the Supreme Court hears Napster.
The Ninth Circuit is the end of line - and Patel can't do a damn thing to stop the Ninth Circuit from reviewing her - as they've proven themselves willing to review damn near everything. So ditch the conspiracy-theory crap, and recognize bad law when you see it.
I commend unto you Hanlon's Razor: "Never attribute to malice that which can be adequately explained by stupidity."
It may be cold, but at least it's clear.
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
I am not sure where you get your "facts" or your arrogant attitude, but the Napster case is most decidedly destined for the Supreme Court, not the Ninth Circuit as you have claimed. It is already in an appelate court; what would be gained by sending it to a court at the same level?
I wholehartedly agree with you that the DMCA is bad law, but the fact remains that there is little the courts can do about Napster's end of the case. In MPAA v. 2600, we had the First Amendment working for us; in this case there is no establishment clause issue and constitutional arguments will get us nowhere.
Throw off the shackles of copyright law.
Her job is to decide the case. If what napster was doing was illigal, if what they were doing was agains the spirit of the law they should go down.
autopr0n is like, down and stuff.
"Music" CDRs, the ones you need if you want to record on a music spesific CD-burner have a tax, but regular CDs you get for your computer don't (unless you live in canada).
autopr0n is like, down and stuff.
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
This is a HUGE blow to the music industry's case. The implication of Judge Patel asking them to produce copyright information is that, if they can't do it, the ENTIRE MUSIC INDUSTRY would be forever changed. Right now, music companies strap artists into super-restrictive contracts where anything the artist makes instantly becomes property of the label. This means that, perhaps, the power of ownership could fall back into the hands of the rightful owners - the artists. The RIAA knows this, and now they have to defend themselves. Ahh, sweet irony...
The other serious side effect of this is that the judge realizes that, like the article said, the music industry is moving into a monopoly of online digital music. We all know that the Napster law suit was raised not because the music industry doesn't want online transmission of music, but because they were late to the game and Napster beat them to the punch (and to the money). Judge Patel is calling their bluff and is saying that you can't shut down Napster just to steal their business.
This is a HUGE turning point to this case, and don't be surprised if the issue of copyright holding in music as a whole is revisited because of this line of inquiry.
taco
"Corrupting our youth one mind at a time"
Well see: the irony of this whole thing is that the RIAA was originally created as an organizing force so that the recording industry could remain stable and organized in the face of things like bootlegging, illegal pirate broadcasting, and proper representation of labels and their artists once they got bigger than a few dozen artists on one roster. The fact that it still exists today is laughable in the first place. The average age of most RIAA lobbyists and members who actually are a force of change is around 55 years. How many 55 year olds do you know that understand how quickly things can change from Napster to Morpheus? I don't know anyone that age who even knows what Morpheus *is*.
It sucks that this "old boy's club" is still seen as a real power in the industry. I say: bring on the new copyright era, if there is one. That or just do away with it. Find another way to make money for your art.
Because I can! [Brainrub.com]
So let's see, you're claiming fair use by posting a load of keys for shareware apps?
Tell ya what, why don't you just go out and run through CompUSA, grabbing stuff off the shelves, and throwing it into the street shouting "It's FREE! It's FREE!"
YOU do not have the right to do what you are attempting to do. Only the person who owns that software has the right to decide what they're going to charge for it. If you disagree, don't buy it. Don't be a stupid asshole instead.
Oh, and by the way, I hope you and your family are condemned to work at an IHOP on the 2am shift for the rest of your lives.
Simon
Coming soon - pyrogyra
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.
Well, if the courts decide that a) the RIAA a monopoly in terms of music distribution; and b) it leverages that power anti-competitively, in this case branching into online music distribution, and killing off potential competitors by a combination of denying licensing at reasonable terms plus suing those who proceed anyway...
...then the RIAA might have a problem. Weren't some Congresscritters talking about compulsory licensing during the hearings?
Only the dead have seen the end of war.
MP3.com is owned by Vivendi Universal. It's so commercialized now... The truly independent artists are stuck at the bottom of the charts, getting no exposre, and therefore no ratings. MP3.com is in no danger.
A solution to the problem with music today
Why isn't VCRs or tape recorders illegal?
Get a clue, dude (and learn how to conjugate while you're at it). Patel's original ruling spells out in intricate detail why Napster is guilty of contributory copyright infringement, and why VCR manufacturers are not. It is a crystal-clear common-sense distinction.
Napster "didn't rule out the possibility that the two sides would work out a settlement that allows the company to launch its legal service. "
They're perfectly willing to settle with the recording industry, which means they're perfectly willing to fuck the artists.
Her rulings are sufficient for me. And guess the news, sparky dickhead boy. I do have a right to say things like that, because she's a public figure, you know, like a politician?
But I guess you wouldn't give a rat's ass, since you're just a whiny little troll without even so much as a little karma to burn behind your misinformed opinion.
I guess you have that to keep you happy.
One CPU cycle wasted on digital restrictions management is ONE TOO MANY.
I didn't actually say she was a willing pawn for the RIAA. Heck, Jack Valenti could have pictures of her going down on a small-dicked, living in parent's basement, toothpaste-fetish scat masturbating little wannabe weblog lawyer like yourself. Maybe.
But I wouldn't want to libel you, so I won't come out and say that the best part of you rolled down the crack of your momma's ass and ended up as a stain on the mattress*, becuase then I'd be quaking in my penny loafers waiting for the subpoena to come from Mister High Powered Slashdot Anonymous Coward, JD (Slashdot), MBA (Cryptonomicon). So I'll be careful. Ha.
* with apologies to Stanley Kubrick
One CPU cycle wasted on digital restrictions management is ONE TOO MANY.
Actually, I do believe that they can sue for recompense at that point. (Of course, I'm not a lawyer...) It's my understanding that it doesn't matter that Napster is guilty of contributory infringement- if RIAA can't produce what Patel is asking for, the party that brought them to court over it isn't the one that has the right to do so.
Depending on whether RIAA knew that they didn't have the right to pursue this, RIAA could be guilty of barritry (The pursuit of a non-existant case- they didn't have a case, the individual artists did. That won't go well for them...) or at the minimum, misuse of process since they used the courts to shut Napster down (without negotiation for some sort of deal) only to have the labels open their own service up at the same time they opened up a similar service that was solely under the control of the self-same labels. Both violations can incur the right for seeking damages on the party so affected- Napster may well be able to sue for damages.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
Yes, copyrights and patents are narrow monoplies, granted by the government. But just because you're given a monopoly over redistribution of, say, Stayin' Alive, by the Beegees, it doesn't mean you're allowed to use that to gain a monopoly over all the music in the world.
"The question of whether a computer can think is no more interesting than that of whether a submarine can swim" -EWD