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The Law and P2P
Anonymous Coward writes "Here's some interesting legal commentary on the continuing saga of copyright enforcement and Apple's attempt at a constructive approach."
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Napster was ruled against because it isn't really P2P; requests went through a central server.
Grokster and Morpheus were not ruled against because they are really P2P; if the backend companies shut down the users wouldn't be affected.
Previous attempts at online music services failed because they were too expensive and too restrictive.
Apple's online music service will not fail because it is not expensive and not restrictive.
The media industries should follow Apple's lead.
IMO, this article wasn't that interesting, nor that informative. It was yet another summation of the story thus far. At least it was a quick read.
obviously no deficiencies vs. no obvious deficiencies
Each was a part of the ruling. In the Grokster/Morpheus (G/M for brevity) ruling it was found that the programs from G/M did have significant non-infringing uses, but this in itself does not free them from the Contributory/Vicarious infringment charge by itself. They also had to show that they did not have a right and responsibility to police the network. This is where the distributed nature of the network came into play. G/M have really no way to watch over what is traded on the network, they do not, in fact, control it really. They have no way to kick off a user who is abusing the network. As such, the judge in the case found that they did not have a right and responsibility to police the network. It was the combination of the two things that made for the not-guilty ruling. If either test had failed, then G/M would have been shut down, just like Napster.
Necessity is the mother of invention.
Laziness is the father.
Guarenteed quality. Guarenteed speed. Instant preview streaming. No one cuts off your download because they're shutting down, or just being an asshole. Guarenteed complete albums. Cover art. Exclusive artist news and videos which are also free with the service.
$0.99 isn't exactly rock bottom prices, but it's better than going to a store and dropping $19 for the one track you like, and it's way better than sitting on the computer for 3 days trying to find a reliable download on Gnutella.
I just tired the iTunes store yesterday, and it's BETTER than I thought it would be, and I'm a die-hard Mac user. Honestly, I have no idea why it took so long for someone to get it right, and all sly remarks about "leave it to Apple to show you how it's really done" aside, I'm glad it's been done, and prehaps this whole "Threat of the Digital Age" bullshit can finally be the fuck over with.
CAn'T CompreHend SARcaSm?
What is needed is an application that scans your MP3 (or whatever) collection, matches up artists with labels through some database and allow you to choose what you already have a paid-for copy of to remove from the list (it would store this information for later use). Then it would calculate a cost for a licence for your entire MP3 collection. A bulk discount would be applied for people with thousands. Then you could whip out your credit card and make that 10Gb legal.
I know people who would do this if they could.
Folks like the recording industry are mostly out for short-term profits (if a given executive can make his millions and get out, what does he care about the future?). However, they have probably finally realized that slowly pulling the rug out from under an unengaged public will make their long term goals easier to achieve than trying an all-at-once lockdown.
Actually what's going to happen is that Napster is going to reform, retool and re-appear on the scene letting users download any and all music for $0.10 per song with no DRM restrictions using lossless open source audio compression techniques. The RIAA will take them to court, be defeated, and all of it's members will be jailed for being jerks to music lovers.
Naturally I have no evidence to back up these wild claims.
Which is exactly the same amount of evidence you have for claiming that Apple and the RIAA are going to pull a PressPlay on its customers.
Here's a concept: Maybe they're the first people to do this thing correctly. Maybe in a year's time everyone will be doing it this way. Maybe all non-Mac users will look back on the fact that Apple led the way with this model and laugh nervously and rapidly change the subject. Kind of like they do with most of the other innovative firsts to come out of Cupertino.
You like your Macintosh better than me, don't you Dave? Dave? Can you hear me Dave?
The reason noone else did it right before was because they (RIAA Cartel) wouldn't license anyone else to do it. Somehow Jobs + Gore (on Apple board, emember Tipper and her parental advisory warnings, he must have some music industry contacts) got the licensing.
What this article sidesteps and the real issue is that the reason the RIAA is fights all this is because they are scared we won't need them anymore, that they will lose their monopoly.
That artists might have another place to go instead of begging the existing companies/structure to sell their music, that the RIAA might not get a cut of their royalties for administering the fee processing.
Apple's store is "ok" cause the RIAA gets a cut and they finally realized pressplay and musicnet and the limited use crap they were selling before noone would go for.
This is the battle for control of distribution, as we have seen previous articles about how most cds are made using ProTools which is reletively inexpensive (ie less than a car). They are scared they won't have the bands groveling at their feet, instead they might competing directly with them.
This fight for the control of distribution will continue, the RIAA paints p2p or any distribution system as "EVIL INFRINGING MUST BE SQUASHED" and the recent Grokster/Morpheus suit shows that they can't buy everyone in the judicial system.
This article seems to think that it will be upheld on appeal, hopefully those judges will be fair.
Because, sometimes they just have to touch the stove.
-YY1
RIAA now has the business model it wants, though Apple gets a small cut, in that instead of people paying $17 a few times a year for a cd, they now have them automatically paying $240 a year. Cell-phone pricing syndrome has everyone blissfully unaware that they are paying way more than they ever wanted to in the first place and the RIAA uses the extra dough to have public executions of P2P software engineers.
This is not automatically true. I remeber when AOL did this sort of switch (yes, I was at one time an AOL'er, I'm sorry, I have learned better now). When I first started with AOL they gave you so many hours per month, and then charged you for any extra hours you used. And with Neverwinter Nights(the original) still running on AOL, I burned out those hours pretty quick, but since I didn't have the money to pay for extra hours, I forced myself to not run over. Then they introduced the $20 all you want method, and people went nuts (me included). It was hell trying to connect to a server, all of the modems in my area were clogged constantly. But when I did connect, oh baby. Since I was in high school at the time, and not working, I would play NWN all night and day during the summer and weekends. I was on constantly, and so was everyone else in my area. It stayed this way for as long as I stayed on AOL. Then, sadly, they killed NWN. By that time I had pretty much seen that I didn't want to be on AOL anymore and cancled my subscription shortly thereafter (I had a job by this point, and was paying for the subscription to feed my addiction).
Moral of the story, a flat rate is not always going to be overcharging. If there is enough value in the service people may well get their money's worth out of it. But as the customer, you have to decide which type of pricing will be right for you. Will it be cheaper to pay per song, or flat rate per month (assuming that gets offered). Me, I'll try and stick with the per song rate, my roomate on the other hand would be a good candidate for the flat rate idea. We'll just have to see where this goes.
Necessity is the mother of invention.
Laziness is the father.
Why would you goto a job and earn money when you can just take it from somebody else?
Downloading music and stealing money are both illegal and wrong.
Please tell me you're smarter than that. People refrain from steeling or whatever because it's moraly WRONG?
Read up on Social Contract theory. There's lot of different Social Contracts (Locke, Montesque, etc) but I'll outline one in breif.
In the State of Nature human beings are lawless and anarchistic. It's like Faith says in Buffy, "See, Want, Take." The strong prevail over the weak. Governments are formed to protect the weak from the strong. Those who submit to these governments give up some of their freedoms (freedom to steal, freedom to kill, etc) in exchange for certain garuntees (protection, equal standards, etc).
Do people refrain from stealing because it's wrong? Some do, certainly, but the majority do so because their fear the consequences. Governments can put you in jail for stealing. If an individual considers this to be a reasonably probable outcome of theft they will likely refrain from doing so. Simple cost benefit analysis.
This is why it only takes a few people to start a looting spree. Take Iraq last month. I seriously doubt that the entire city of Baghdad was just waiting for the US forces to show up so they could make off with everything in every shop, store, and office in the city. A few individuals decided that the fall of Saddam's government made the risk accecptable. They got away with it. Suddenly everyone else realised two things.
1 - The government (such as it exists) is incapable of stoping this or unwilling to do so.
2 - If everyone else gets it for free and I don't I'm behind.
Now to bring this back to music.
People didn't copy music that terribly much before the Internet Music Craze (great phrase, wonder who came up with it) because it was difficult and because it wasn't the status quo to do so. Same goes for video tapes. Remember when people actualy worried about that FBI warning?
The IMC (lots of letters in that phrase) changed the status quo. Suddenly EVERYONE was getting music for free. When that happens no one wants to be the chump who's paying for it. More to the point, with apparently no consequences for downloading the music the action wasn't really "illegal" anymore... at least not in the sence that illegal means getting punished for doing it.
Human kind WILL revert back to the state of nature if governments fail to enforce the laws. Similarly, once pressure is let off, society will generaly not let it be put back in place without overwhelming force. Example -- The Soviet Union. Under Stalin the Soviets ruled with an iron (or rather steel) fist. When Khrushchev came to power he first let a bit of the pressure off. The populace reacted, and despite the development of hardline elements in his government later on, he was unable to tighten the screws back down. Once freedoms, long lost, had been enjoyed the government was unable to take them back without extraordinary measures.
It will be interesting to see how this will play out for the music industry. Will an iTunes like solution be enough to bring the industry out of the flat spin it's entering? I don't know. I'm not buying Time Warner stock though.
Killfile(TGK)
No trees were killed in the creation of this post. However, many electrons were inconvenienced.
I wonder what the pricing breakdown per song for iTunes is. What percentages are going to the Record Industry and the Artists? Since there is no cost of the physical "CD", besides advertising, promotions, etc.
I don't think that this is necessarily a solution for the artists, but a solution for the consumers. The RIAA always talkes about how it's artists are loosing money because of P2P. I hope whatever "tax" that Apple has to pay the record industry to pay for the copyright use of these songs, that a greater percentage goes to the artist.
Not unaware, they are just too stupid to care. Not everyone (although it sure does frickin seem like it) has a cellphone. I used to own a cell-phone when you could pay for the minutes you used. I paid $11 a month for service, and got 0 free minutes. I loved it! Why should I pay for something I don't use? I am convinced that the American public is just stupid. "Hey, I've got 1000 minutes, I think I'll call my buddy and blather on about absolutely nothing." People are always asking for my cell number, and they look at me like I have a tree growing out of my forehead when I tell them I don't have one. I am no luddite, I just refuse to be convinced that I need something just because everyone else has it and it is the cool thing to have. I think that about 90% of people don't need a cellphone, or at least only need to use it 1% of the time they currently do. Same goes for SUVs. The herd mentality is just overwhelming, and is really sad. Maybe that is why I don't want Linux to succeed on the Desktop, because the idiot sheep in this country will suck all life out of it.
My beliefs do not require that you agree with them.
Incidental copies made as a necessary step in the course of an otherwise lawful use of a copyrighted work are fair use (in the US).
(As I recall, this point of view actually has some case law precedent to back it up, but has not yet been explicitly introduced into the copyright law itself.)
The customer was not being served by the music industry. Apple's recent Music Store opening offers ample evidence of that. It certainly has shortcomings but the overwhelmingly positive response to it clearly demonstrates that people will pay a reasonable amount to download a quality recording.
Wansu, th' chinese sailor
Neither company operates "supernodes", which facilitate entry into the P2P network. Grokster does rely on Sharman to operate a "supernode" for all clients attaching to the KaZaa network. Once connected, the clients do not go through this central machine. According to the logic of the ruling, operating this server would be equal to contributory infringement. It was specifically noted that Grokster did at one time operate a server. It can be deduced that Sharman will be found liable using the same logic, and may be forced to shut their server down (if it is located in the US anyway). This will effectively "decapitate" the KaZaa P2P network, as no new clients will be able to be connected.
Morpheus (and all other Gnutella-based systems) will not have this liability, and if this ruling is not overturned on appeal, will be basically immune from these types of lawsuits. Those that rely on a central server for anything can and will be held accountable based on this ruling.
As for the P2P vs. Apple/Other services, it's a basic principle - Get rid of the "free" but cumbersome and unreliable option (via lawsuits) while opening up a cheap and quality service on the other side. Now if the RIAA did this on their own, they might be raking in the dough... good luck ever changing thugs like them without a shotgun and backup though.
The Federal Code has several sections on Fair Use.
The first section on individual Fair Use may not be all that relevant to P2P, but the second section seems to go straight to the heart of the matter.
The second section is about Libraries and Archives. It's the Archives part that seems particularly relevant to P2P. That's what P2P is, isn't it --a distributed archive.
Moreover, the law itself specifies what it means by a library by saying that a library is a publicly accessible non-commercial media lending facility.
Libraries and Archives are allowed not one, not two, but three. Count them, three big copies of any copyrighted work. And what is the purpose of these three copies? Specifically, the purpose of these copies is to lend to other publicly accessible non-commercial archives.
So, let's compare this to P2P. A hypothetical user has two copies of a copyrighted work on CD backups and another on the hard drive. That's three copies. Hmm, so far I don't see any infringement. But what's the intent. Let's see here. It appears our hypothetical user is going to lend a copy to another publicly accessible non-commercial archive.
According to US Federal law this seems to be completely legal activity.
1) Move files between machines
2) Play files forever if you like
3) (most important) make a CD.
Really #3 is the only reason why I consider fair use to be decent for Apple files. I could always re-encode them if I liked, or store them in a non-lossy format that would keep the quality frozen forever just as it is now - which is good enough for me.
In practice I don't really do that though, because I do use iTunes for music and don't need to convert the files. If I had a dedicated music server for my home I'd probably store all my CD's lossless anyway.
To summarize, most people consider what Apple doing as useful because there is a way out of that file format. Just like an airplane emergency exit, you don't use them every day but they are there and you can use them.
What I find intriguing are how iPods are able to play these files... couldn't you copy files from one iPod to any other when mounting them as FW drives? Does the new iPod software have some idea of who the user is when the user synchs?
"There is more worth loving than we have strength to love." - Brian Jay Stanley