Capitol Records Flooded Internet With MP3s, Says MP3Tunes CEO

NewYorkCountryLawyer writes "In court papers filed in New York in Capitol Records v. MP3Tunes, the CEO of MP3Tunes, Michael Robertson, has accused the plaintiffs EMI, Capitol Records, and other EMI record labels of flooding the internet with free MP3s of their songs for promotional purposes, 'free to everyone (except, apparently, MP3tunes).' His 10-page declaration (PDF) provides exact details of specific song files, including the URLs from which they are being distributed free of charge, both by paid content distributors, and by EMI itself from its own web sites."

Comments

What am I missing here???

[NecroPuppy]

Aren't the songs EMI / Capitol's to do with as they wish?

Including give them away, by whatever methods they choose?

Obviously, I'm missing a legal facet here; what is it?

Re:What am I missing here???

[Phoenix Rising]

Nope, you've got it right.

If Capitol Records holds the Copyright, then they can do whatever they want and still control the distribution channel.

Re:What am I missing here???

[Rinisari]

IANAL. I think the murky issue is the licensing. If Capitol Records put the mp3s on some site and said, "Come get free mp3s" and didn't have any terms or conditions, what's a reasonable assumption? Those mp3s are downloadable and distributable by everyone and anyone? Or that only consumers are permitted to download them? Without a license or terms of use/download, it's unclear to me.

Re:What am I missing here???

[Anonymous Coward]

EMI / Capitol is apparently having this lawsuit with MP3Tunes for MP3Tunes distributing the songs EMI had up for free download.

Essentially EMI is telling MP3Tunes they can't distribute that content.

MP3Tunes looks like it's following the idea of 'You gave it away so we can give it away too'. Sort of like the third party market. You buy a product from someone and thus you can resell that product if you want.
EMI gave away the mp3 via downloads to MP3Tunes for free so MP3Tunes posted them and gave them away for free to.
EMI is objecting to this because MP3Tunes is not owned by them and thus they lose some distribution control (and ads and such from their sites, I presume).

Re:What am I missing here???

[BrianRoach]

what's a reasonable assumption?

That copyright law still applies? That would be my "reasonable" assumption.

Unless they grant you the right to re-distribute their copyrighted works, you don't have one.

There is no implicit right to re-distribute even if you are given a copy of something for free.

Re:What am I missing here???

[corsec67]

So someone could start a service pointing a user to where they can legally download MP3s? That would work in this case, since Capitol Records is distributing the MP3s themselves.

Re:What am I missing here???

[taco8982]

I think what you're missing is spelled out fairly effectively in the linked declaration. EMI sued MP3Tunes not for redistributing their IP, but for linking to locations that did. More specifically, they required not only that they remove specific links to specific songs as they had done initially, but that they remove links to every EMI song in existence claiming that they had not authorized ANY of their songs to be distributed online. MP3Tunes declined to do this and was sued. This, however, gives examples of several places where EMI HAD authorized their songs to be distributed as MP3s and thus not every link to every song they own is an infringing link.

Re:What am I missing here???

[Just Some Guy]

There is no implicit right to re-distribute even if you are given a copy of something for free.

You're 100% correct, but I think it'd be darn difficult to show damages. A certain famous case comes to mind where BellSouth claimed Craig Neidorf stole documents worth $79,449. As it turns out, they offered the documents for sale (from their catalog, no less) for $13. When this came out at trial, BellSouth wisely dropped the case.

Re:What am I missing here???

[NewYorkCountryLawyer]

I think what you're missing is spelled out fairly effectively in the linked declaration. EMI sued MP3Tunes not for redistributing their IP, but for linking to locations that did. More specifically, they required not only that they remove specific links to specific songs as they had done initially, but that they remove links to every EMI song in existence claiming that they had not authorized ANY of their songs to be distributed online. MP3Tunes declined to do this and was sued. This, however, gives examples of several places where EMI HAD authorized their songs to be distributed as MP3s and thus not every link to every song they own is an infringing link.

And the accompanying memorandum of law gives you the context in which the declaration was being submitted.

Re:What am I missing here???

[Gr8Apes]

exactly. And my last remaining mod point expired right before reading it. Darn!

Re:What am I missing here???

[AK Marc]

When copyright applies, the Right of First Sale still trumps it. Thus, you can download an MP3 from an authorised free site, then sell it. You can download it 100,000 times and sell those 100,000 copies. So, if you want to be a distributor, just download the file as many times as you want for free, then sell or give away those copies. As long as you delete them when you transfer ownership, then you have violated no law.

There is no implicit right to re-distribute even if you are given a copy of something for free.

Sure there is. Plenty of people got the Cue-Cat for free and sold it. They had the implicit right to re-distribute it after having gotten it for free. That's law, and it trumps copyright. Yes, they don't have the law to get one free Cue-Cat and make 10,000 copies they then distribute, but if they found a way to get 10,000 of them for free, then distributing them is perfectly legal.

Re:What am I missing here???

[Sloppy]

True but irrelevant. Apparently EMI is suing Robertson for the initial act of EMI distributing the file. There is no "re-" prefix on that verb.

Analogy: You tell someone to go to a bookstore (a new one, not even a used one, let's say) and buy a book, they follow your advice and purchase the book, and then the copyright holder of the book sues you for telling people to buy the book. We're talking about the first sale itself, not even a disagreement about what can be done after the first sale. Wow.

Re:What am I missing here???

[Anonymous Coward]

The First-sale doctrine applies only to tangible property. It does not apply to an mp3 you downloaded.

Re:What am I missing here???

[Fulcrum of Evil]

What's interesting is that the $80k damages figure was basically the entire cost of production, and assumed that he took the only copy for himself. That takes balls...

Re:What am I missing here???

[Anonymous Coward]

And the accompanying memorandum of law gives you the context in which the declaration was being submitted.

And given that I'm not a lawyer, it's tiring for me to try to decipher.* That's why I usually rely on NYCL to coherently summarize what the issue is in his normally well-written summaries - except it seems you've started counting down the new year early, and are too hooped up on champagne to explain the background of the case. Your summary doesn't even clearly explain who is suing whom for what.

*And given that it's Slashdot, I wouldn't RTFA anyway ;-)

Re:What am I missing here???

[fermion]

This to me is an amazing, given that US courts at least have said the opposite. Over the summer the courts ruled that promotional CDs could be resold even though they were stamped with a notice that could not be resold, and no sale took place. So what might this precedent say about what is happening here?

Let's say that some business gave away one plastic widget a day per customer. An enterprising family went and got a number of widget and resold it on the open market. First sale doctrine, as I understand it, would support that entrepreneurial free market efficient movement of product.

Let's say that the some other business gave away as many promotional widgets as one wanted, but only one per visit. That entrepreneurial family previously mentioned expanded the business so, for a small fee, they would pick up the widget and deliver it to the person. The fee might be paid directly by the recipient, or indirectly by a third party wishing access to the participant. IS this illegal?

The point is that giving something away as a gift does not grant any additional rights beyond the original copyright, and I do not believe there is anything, at least, in US law, that prevents regifting. This case may not even involve regifting. It may involve just directing a user to the location of the free loot. Even if a copy is made, on could theoretically just download a new copy off the right holder website for each request.

What complicates things here are two things. First, the tracks may not be free. They may in fact be ad supported, in which the right holder expects eyeballs. If that is the issue, it is covered under whatever legal framework that exsits for webscraping. Even so, if they are giving away music to anyone who drops by, and then we are back to the issue of our right to resell property in our possession, even if we did not pay for it, as long as it was not stolen. Or not. who knows.

Re:What am I missing here???

[profplump]

Since when? If I buy patent rights I'm certainly entitled to re-sell (or even license it) those rights as I please. Likewise with copyright, and other forms of intangible personal property.

You're probably trying to say something about how they're not giving away a copy of the song, but only a license to use a copy of the song. That may or may not be true, depending on what agreement(s) were entered into before downloading the song. Even if it is true, they may or may not be able to enforce a contract that says you can't transfer the license you've been granted.

Re:What am I missing here???

[Fulcrum of Evil]

Cue-cat isn't a copyrighted thing, it's a physical good, and it wasn't redistributed, it was sold - no copying involved. How would you even do that?

Re:What am I missing here???

[Rashkae]

Sorry, but that is just entirely false. If you download something from the net, even if you got it for free, you do not automatically have the 'right' to give it to someone else, and you will most certainly get spanked by any judge if you try "selling" to someone else.

The plaintif doesn't even have to prove damages. Copyright infringement carries a stipulative minimum damage in North America.

Re:What am I missing here???

[spazdor]

You absolutely, certainly have the right to give something you downloaded to someone else, provided you do not also keep a copy. This does not violate copyright in any way.

Re:What am I missing here???

[ThePhilips]

MP3Tunes looks like it's following the idea of 'You gave it away so we can give it away too'.

I thought that was called "non-discriminatory" condition. If party X gave party A something on particular conditions, it can't refuse to give party B the same thing on same conditions.

Essentially, PM3Tunes say that they are being discriminated. IANAL so have no clue whether it is applicable.

Re:What am I missing here???

[larry bagina]

My understanding (from a book I read on it years ago) was that he catted it to his screen but didn't redistribute or even keep a copy of some (most? all?) of the stuff in question.

Re:What am I missing here???

[larry bagina]

Since when? If I buy patent rights I'm certainly entitled to re-sell (or even license it) those rights as I please.

But if you only license the patent, your usage is limited by the licensing agreement which most likely doesn't let you re-sell or sublicense. Likewise, with licensing of copyrighted material or renting property.

Re:What am I missing here???

[tgd]

Sorry, you're quite incorrect.

Copyright doesn't matter -- their contract with the companies that distribute their music does.

Re:What am I missing here???

[PitaBred]

So why is it legal to sell mp3's in the first place, then?

Re:What am I missing here???

[Just Some Guy]

"Hacker Crackdown" by Bruce Sterling, available from Gutenberg. I think he pasted parts of it to Phrack, which he published at the time.

Re:What am I missing here???

[cpt kangarooski]

The First-sale doctrine applies only to tangible property. It does not apply to an mp3 you downloaded.

Well, that's not entirely correct.

The reason why downloading can be infringement is because when you download a work, you necessarily fix the intangible work in some tangible medium, e.g. RAM, or a hard drive, as you do it. Fixing a work in a tangible medium constitutes reproduction under the copyright law, and reproduction is one of the exclusive rights of the copyright holder.

However, first sale applies to all lawfully made copies (a copy is a tangible medium that the work is fixed in; when you download something to your hard drive, the hard drive becomes a copy of that thing, along with whatever else the hard drive is), regardless of who made them. Any person who owns a lawfully made copy may, for example, sell that copy, without permission from the copyright holder. The statute is at 17 USC 109 if you'd like to look at it.

So if you were given permission by the copyright holder to download some music and fix it in any medium you wished, you could just start burning CDs and selling them, and it would fall under first sale. I suppose you could also just give away your hard drive or something, but generally people don't like to do that. However, it's more common that the copyright holder permits you to download the music only if you agree not to distribute copies of that music to other people. In that circumstance, so long as you don't sell, or give away copies, the copies you make are lawfully made. If you do sell them, then they're no longer lawfully made (you've exceeded the scope of the permission to download them in the first place) and so first sale doesn't apply.

I'm sure that folks here can see some parallels to the GPL: you can copy, distribute, and modify GPLed software as you like, so long as you obey the instructions of the GPL to make source available; fail to do that, and you can't have lawfully done those other things.

Re:What am I missing here???

[Anonymous Coward]

What you are missing is that MP3tunes is not being sued for distributing music files, but for linking to music files. EMI alleged that MP3tunes was using links to induce people to violate copyrights. It turns out that at least some of the files being linked to were files which had been placed by EMI itself, thus it was EMI itself distributing the files, thus there was no copyright violation.

Summary: EMI is trying to con the court into believing that when it gives away a song it can then sue a thid party for copyright violations. Bizarre. It's as if you told your friend about a promotion in which the local ice-cream shop was handing out free samples, your friend went and got a free ice-cream, then the ice-cream shop sued you for telling your friend.

Re:What am I missing here???

[Kjella]

A question, and I'm asking because I honestly don't know, has it been clearly established under US law that distribute and delete equals transfer? Because if it is, then any free download could easily claim to have been done "infinity" times and so giving away copies is legal since you're legally not making another copy, just giving one of the copies you already have.

Re:What am I missing here???

[nabsltd]

Distribution (in copyright terms) means that you cause another copy to come into existence.

So, when you download an MP3 from a site authorized by Capitol to distribute it for free, are you creating the copy, or is the site? I suspect that it would have to be the site, otherwise it would be unauthorized distribution.

So, then if you download the same MP3 1000 times, you still have not done any "distribution", but you now have 1000 legal copies, since you obtained them from a party authorized to distribute the MP3. In theory, you should now be able to allow 1000 people to download the file from you, as long as you delete one of your copies each time this happens.

Now, what is the difference between you actually keeping 1000 separate copies on your hard drive and you having one copy and a counter that says "1000" for that file? So, the next question is, why do you have to "download" 1000 copies from the original site in the first place?

IANAL, but this sort of issue with copyright on digital media is why there need to be some serious updates to the copyright laws.

Re:What am I missing here???

[cpt kangarooski]

A question, and I'm asking because I honestly don't know, has it been clearly established under US law that distribute and delete equals transfer?

AFAIK it has not, and it likely wouldn't be if squarely addressed. Instead, it would be infringing as a new copy was made (the law doesn't care if an older copy was then destroyed; it's the act of copying that matters, not the number of copies left at the end of the day), and worse still, there was also distribution (or more accurately, performance or display) involved as well.

Re:What am I missing here???

[nabsltd]

However, it's more common that the copyright holder permits you to download the music only if you agree not to distribute copies of that music to other people. In that circumstance, so long as you don't sell, or give away copies, the copies you make are lawfully made. If you do sell them, then they're no longer lawfully made (you've exceeded the scope of the permission to download them in the first place) and so first sale doesn't apply.

I'm sure that folks here can see some parallels to the GPL: you can copy, distribute, and modify GPLed software as you like, so long as you obey the instructions of the GPL to make source available; fail to do that, and you can't have lawfully done those other things.

Once you brought the GPL into it, that shows you don't really understand.

No "license" that you don't actually sign can restrict your rights under copyright. The GPL doesn't restrict any rights...it actually expands them. If you violate the GPL, all that really happens is you lose your extra distribution rights. So, a GPL-like license that said that if you didn't provide source code then you could not re-sell a physical copy is not valid, since it can't restrict your rights under the first sale doctrine.

When an MP3 is offered for download (either at a price or for free), it's obvious that a copy of the file has to be stored on something on the downloader's end in order for it to be useful. That "something" may be RAM, a hard disk, a flash drive, or a recordable CD, and I can't see anything in copyright law that would restrict the downloader's choice of the medium, based on various "fitness for purpose" consumer protection laws. Really, would it make sense to be allowed to download the MP3 to a flash-based iPod, but not a hard-disk iPod?

So, the question becomes: are all digital sales protected by the first-sale doctrine, even if the purchaser must provide the media for "fixing" themselves?

Re:What am I missing here???

[cpt kangarooski]

No "license" that you don't actually sign can restrict your rights under copyright.

Why wouldn't it? What's so magical about a signature?

If you don't have a right to download a copyrighted work and thus make a new copy of it (an infringing act, barring permission, or an exception in the law), then in order to be granted that right, you might have to shoulder some obligations, such as not exercising your right to engage in first sale with regard to the lawfully made copies of that work you've made pursuant to the grant.

The GPL is quite similar: it grants a right you don't normally have -- making copies, making derivatives, distribution -- but imposes an obligation to distribute source if you accept the grant and engage in those certain behaviors.

One obligation for the licensee is much the same as another. It doesn't matter whether it deals with first sale or not.

When an MP3 is offered for download (either at a price or for free), it's obvious that a copy of the file has to be stored on something on the downloader's end in order for it to be useful. That "something" may be RAM, a hard disk, a flash drive, or a recordable CD, and I can't see anything in copyright law that would restrict the downloader's choice of the medium, based on various "fitness for purpose" consumer protection laws. Really, would it make sense to be allowed to download the MP3 to a flash-based iPod, but not a hard-disk iPod?

If the copyright holder makes the legality of the download contingent on using one particular medium and not another, it's his choice. He doesn't have to permit the download at all. If he decides to only permit downloading by red-haired people on alternate Thursdays, then he has every right to do so. It might be silly, but there's nothing to override his choice.

So, the question becomes: are all digital sales protected by the first-sale doctrine, even if the purchaser must provide the media for "fixing" themselves?

They're protected by the doctrine unless the downloader has willingly promised not to exercise it. First sale isn't an inalienable right. Even when the Supreme Court first recognized it in Bobbs-Merril, they acknowledged that it could be contracted away. The right is only there in the absence of an agreement that it's not; that is, it's the default, not absolute.

There is of course a lot of room to argue about how we should regulate the right to contract, how we might reform the UCC, how we might reform copyright law, etc. to deal with relatively recent developments like nearly ubiquitous adhesive licensing and the way that computers must copy things in order to use them. But I'm talking about what the law currently is, not what we'd like it to be. After all, I figure that education as to the sorry state of these laws is our best chance to get meaningful reform. Overly optimistic misconceptions are no good toward that aim.

Re:What am I missing here???

[sjames]

IANL but I think the idea here is that you can't really claim to have been grievously harmed if someone hands out free copies of a song you're already handing out for free. It could even be argued that they saved you some bandwidth charges.

Re:What am I missing here???

[Dan541]

Since when does ownership give you any rights?

Just think DRM.

Re:What am I missing here???

[bwcbwc]

(IANAL) Don't necessarily have to show a full value of damages for copyright violation. Damages for copyright violation of registered works are calculated by statutory formula rather than actual damages. The $220k verdict that was recently overturned by the judge is an example of a statutory damage award.

The overrule was not because the damages were deemed unfair for a genuine case of copyright violation, but because the judge decided that "making available" was not a valid definition of a copyright violation, making his earlier jury instructions invalid. If an actual violation had occurred, the statutory damages would apply for each violation even if the actual damages caused were less.

OTOH, just linking to other sites that actually host an "unauthorized" MP3 isn't distribution or even "making available" by any definition.

Re:What am I missing here???

[bwcbwc]

Under that logic, if your original downloaded copy is to a flash drive (or CD), wouldn't right of first sale apply to the copy on the flash drive? That is just a non-volatile version of the actual bit stream that the seller sent to you. It's not a separate copy, it's the tangible storage of the original sold copy.

I suppose the record companies would like to argue that the original copy is just the original bitstream saved into the computer's RAM or in the swap file, but that logic is implementation dependent. It is physically possible to write a software program that takes the bit-stream from the seller and directly copies it to a flash drive with no more than a small memory buffer that would qualify as a fair use excerpt of the copyrighted work.

Non-technical users should not have to do research to distinguish whether their particular download software is coded to allow them first sale rights or not, when from a practical usability standpoint, the only copy of the work that they received is the copy on their flash drive. Temporary copies in RAM or swap are inaccessible by ordinary means (and use of "extra-ordinary" means would be evidence of willful copyright violation in any case). As long as they don't copy the copy that they purchased legally, the right of first sale should apply.

Re:What am I missing here???

[Theaetetus]

You're 100% correct, but I think it'd be darn difficult to show damages. A certain famous case comes to mind where BellSouth claimed Craig Neidorf stole documents worth $79,449. As it turns out, they offered the documents for sale (from their catalog, no less) for $13. When this came out at trial, BellSouth wisely dropped the case.

Ah, but that would be a tort for conversion or unfair competition... This one is copyright violation, which has statutory damages without even needing to show damages. Incidentally, this is where we get those $155k per song statutory damages.

Re:What am I missing here???

[mysidia]

However, it may lower the bar for fair use. If they're giving it a way and not selling, the market impact of copying (esp for non-commercial use) is much less.

The damage incurred by copies in the past are potentially less also.

Re:What am I missing here???

[Nursie]

"Instead, it would be infringing as a new copy was made (the law doesn't care if an older copy was then destroyed; it's the act of copying that matters, not the number of copies left at the end of the day)"

But the law clearly has no interest in the act of copying, as format shifting is fine. I think this is very very open to debate (in the US).

In the UK it's not actually, strictly speaking, legal to rip a cd you own....

Re:What am I missing here???

[cpt kangarooski]

But the law clearly has no interest in the act of copying

Well, that's not the case in the US. All copying of copyrighted works is prohibited without either permission from the copyright holder or an exception in the law. Format and space shifting are no exceptions and are prima facie infringing. They're only lawful in cases of fair use, which is a case-by-case issue. Under some circumstances that would be legal but not under others. In fact, those are actually pretty tricky. While we're doing a bit better than the UK in some respects, I suppose, our laws aren't so dissimilar as you might suppose.

Re:What am I missing here???

[Anonymous Coward]

Nope, you've got it right.

If Capitol Records holds the Copyright, then they can do whatever they want and still control the distribution channel.

I would have to believe that giving away a product for free and then discriminating against a person or groups of people would still be illegal.

Re:What am I missing here???

[Anonymous Coward]

If he decides to only permit downloading by red-haired people...

This *would* probably be illegal as it would be racially discriminatory - AFAIK only certain racial groups** have red hair genes.

**I know that the concept of race is highly dubious from the genetic point of view; I'm just considering the likely legal view.

Re:What am I missing here???

[Anonymous Coward]

At a certain point, fair use rights and consumer protection rights take over. They tried to choke out used booksellers by putting clauses into the books stating that reselling isn't legal, and were overruled.

EMI?

[Anonymous Coward]

Suing EMI? What next, is MP3Tunes gonna sue other scene groups like EOS, RNS, KSI?

Here we go.....

[zappepcs]

I am thinking that 2009 is going to be a very interesting year for the RIAA's legal team. Who hasn't heard/read about the latest foibles from the record companies and I'm willing to bet that this one won't be the last.

Monopolistic practices? Unfair trade practices? Come on now! The RIAA and it's members would NEVER do anything like that. How many here wonder how many tune/files were seeded to P2P networks by the RIAA members themselves never mind paid third parties so that their 'investigative' group could actually find file sharers? Can you say Enron? Yeah, I know it's not even close to the same thing, but I am betting it breaks open as big in the news and it's after affects when the real truth of what big record labels have been up to for the last 5 years.

Take what Sony did. There is an example of how unscrupulous they really are. Imagine the money that they have and they don't have employees that know it was not just morally bad, but illegal? Ignorance of the law is not acceptable in court.... unless you have several hundred million dollars to buy things for legislators holidays and such.

Like my great grandfather used to say... "The shit you see when you don't have a gun... damn"

He was of course talking about deer on the side of the road, which is close to road kill, and I hope that is what 2009 will label the RIAA, so it kind of fits.

Re:Here we go.....

[sbeckstead]

I fail to see how enforcing your copyrights amounts to unfair trade practice nor does it amount to "Monopolistic practices". Monopolistic practices are NOT illegal or inherently unfair. In a capitalist society like ours a monopoly is the ideal business situation to find yourself in.

I also doubt that they deliberately "seeded" files to p2p systems, they would have no need. There are enough people that don't want to pay and/or don't understand the law that they only have to look to find these.
Never ascribe to malice that which can be adequately explained by stupidity or ignorance.

As far as the RIAA goes, they have indeed engaged in some questionable and downright underhanded legal tactics to prosecute their law suits but that hardly amounts to unfair trade practices.

Re:Here we go.....

[danlor]

orly? Price fixing? Extortion? Abuse of power? Collusion?

Does this open your eyes?

Re:Here we go.....

[jedidiah]

No. Monopolies are inherently unfair. That is why they are
highly limited and strictly regulated. Everyone (except
certain robber baron wannabes) realize how destructive and
counter productive monopolies tend to be.

Content publishers (calling them creators would be inaccurate)
want to pervert centuries of practice in terms of first sale
and other basic rights associated with ownership of something
or ownership of a copy of something. Upsetting this particular
apple cart would have far reaching implications beyond some
corporate pop band and their latest hit that will likely be
forgotten by next year.

What kind of collateral damage is Britney Spears or Metallica worth?

Re:Here we go.....

[zappepcs]

I'm curious. How do you explain the root kit on Sony CDs with ignorance or stupidity? Anyone that stupid should not be in business. period. The Sony legal team has enough experience to protect trademarks, read the news, and study the laws. Any software release that was not run through the legal team opens the company to unknown litigation costs. When you have that much to lose, being stupid is not an option.

Enron, as I mentioned them, is but one example of a big business going out of their way to screw over customers and employees alike. I don't think it's so hard to imagine that executives at Sony and other record companies are just as immoral and unscrupulous. In fact, it's rather easy. Yes, you can go ahead and keep giving them the benefit of the doubt, but I won't and there are a lot of people feeling the same way. Fool me once, shame on you, fool me twice, shame on me... or if you like, once bitten, twice shy. Oh, then there is an old fav: A leopard does not change his spots. If you are familiar with them, Metallica has a song about a scorpion which seems rather appropriate.

If you believe that this is about enforcing copyrights... I'm aghast. After all that the RIAA and members have done, now saying who can have free downloads? That's not copyright, it's tantamount to saying 'here is a free MP3, but you can't use it for anything other than listening alone to it at home. A completely unrealistic expectation under current and all foreseeable copyright laws.

If Ford gave you a free car but then said you can't put any bumper stickers on it, would you tell them to fuck off? Anyone else can put bumper stickers on the free cars we gave them, but not you! This is the thing about public domain. Once a thing is released to the public domain you have lost control of how it is then distributed.

There is little if any difference between reality here and having a site that has advertisements on it that points (with deep links) to sites that have free MP3 files, although that is a bit cheap, using someone else's bandwidth for the actual downloads. Point remains. If it's free for downloading, it doesn't matter one iota how the downloader finds the link.

Regardless of how unsavory this company might actually be, this is wrong of EMI, and should they win it would set a very bad precedent for copyrights, patents, and many other things with regard to the public domain and 'things' released to the public domain with no license. You can indeed follow a URL link to the actual file and not be presented a EULA or license, so whether they intended it that way or were just stupid, they are free for downloading and free of licensing, and therefore EMI has lost distribution rights of any kind.

Para 15 says it all really:
                              In short, EMI has engaged in active marketing of its music directly and through hundreds if not thousands of online music partners. As a consequence, thousands of EMI songs are available on the Internet for free download with its authorization. Yet EMI is seeking to impose liability upon MP3tunes because it runs a search engine that links to many of the same files. MP3tunes respectfully requests that EMIâ(TM)s motion to dismiss be denied.

Re:Here we go.....

[sbeckstead]

Open my eyes to what exactly.

Who or what is abusing their power. Who is in collusion, and with whom. When does collective bargaining become extortion and vice versa. Who has done the price fixing.

Yes some of those things are truly illegal and if you can convict any one of them (as in the case of Enron) it is a good thing. You still have not negated the fact that as a business I want a monopoly.

Re:Here we go.....

[sbeckstead]

Define unfair.
Look Mr. Monopolies are unfair, If I invent some new fangled widget and I'm the only one that knows how to make them, I have a monopoly. As long as I can have it I'm going to take steps to keep it. Like copyrighting and patenting and I will actively pursue any legal means to keep that monopoly as long as I possibly can. It's not until I step over the line and begin acting in an illegal manner that my monopoly becomes a bad thing. Incidentally you need to go read the anti-monopoly laws again, they are neither highly limited nor strictly regulated. Commerce itself has regulations as does advertising and there are fraud regulations these are the factors that regulate the monopolies

I am so tired of this whiny bullshit attitude that says that every monopoly is a bad thing just because it is a monopoly.

Re:Here we go.....

[sbeckstead]

Ignorance of one form and stupidity of another. These guys do evil, they are not inherently evil. Enron was actively evil and many but not all of those guys are being punished, grant you not what I would like but they are.

"I own the copyright to that music, I grant you a license to listen to it and do anything with it you wish as long as you don't give it away or try to sell it". Pretty standard license and actually I think encapsulated in the copyright law itself. This seems pretty clear to me. The copyright law also says that you must be granted rights explicitly rather than assuming them. If that also applies to advertising my goods then the location of the ones that I am giving away for free for certain purposes (usually promotional to a specific group) is mine to distribute as well. In order for them to be released to the public domain EMI et al would have to NOT defend the rights to them. I think they also have to explicitly declare them to be public domain but that's a bit fuzzy I think. Now with physical goods things are a bit different. In order to properly use your car analogy it would have to be like this. I have a thingy that makes cars that are here for a short time and then they are gone into the ether. I grant you the use of it to look at the pretty cars it produces. I also don't grant you the right to make copies of this thing and give those away. I don't grant you the right to figure out how to make the cars real and give them away, only I have the right to do that. Its a bad analogy but I think it applies. "You can indeed follow a URL link to the actual file and not be presented a EULA or license" And no simply because it is available on a particular URL for download it is NOT free of licensing nor do you even have permission to download it. If that were true then "making available" would indeed be equivalent to "distributing" and there goes that argument you guys so carefully tried to defend. You can't have your cake and eat it too.

From my point of view this guy's law suit is about him trying to grab shit he don't own and then saying, well you gave it away why can't I.
And they say well you don't have the right to do that.

Re:Here we go.....

[cpt kangarooski]

"I own the copyright to that music, I grant you a license to listen to it and do anything with it you wish as long as you don't give it away or try to sell it". Pretty standard license and actually I think encapsulated in the copyright law itself.

Hm, sounds problematic to me. Copyright doesn't include an exclusive right to listen to music. The copyright holder can control making copies of the music, making derivative works based on the music, performing the music, broadcasting the music, etc. but not actually listening to it. That's free.

The closest the copyright holder could get would be to not let anyone else have copies of the music, and to require anyone who wanted to listen to have to pay a fee to do so. This would basically be providing a venue -- the same thing that a concert hall does -- and would really have nothing to do with copyright. Charging admission to venues works just as well with public domain materials (e.g. paying money to go see an uncopyrighted movie in a theater).

The other stuff though; the 'do anything with it you wish' is far more interesting. That would permit people to, say, make derivative works based on the music (e.g. a music video), and with the paltry limitations, to publicly perform it (e.g. on MTV) or rent out copies of it.

The copyright law also says that you must be granted rights explicitly rather than assuming them.

No, it says no such thing. In fact, copyright licenses are probably more often implied than express. For example, your post to which I am responding is (probably) copyrighted. You didn't expressly give me permission to download it (as I necessarily must simply in order to read it), but were you to take me to court over it, you'd surely lose, because your conduct in posting it to a public forum such as this granted me that right.

The law does say that exclusive licenses have to be written and signed by the licensor, though, so perhaps that's what you were thinking of.

If that also applies to advertising my goods then the location of the ones that I am giving away for free for certain purposes (usually promotional to a specific group) is mine to distribute as well.

Why would the location be copyrightable at all? Sounds like an uncopyrightable fact to me.

I don't grant you the right to figure out how to make the cars real and give them away, only I have the right to do that.

Well, you'd have to have that right. Certainly copyright only covers a few specific rights with regard to a work, leaving the rest to the public domain even during the copyright term (e.g. while not everyone has the right to print up new copies of a book, everyone has the right to read extant copies at will). I think the analogy does break down here -- patents require you to tell the world how to do it, if that's what the subject of the patent is. Trade secrets don't protect against reverse engineering, so anyone is free to apply their own brainpower to breaking your control over the secret by independently discovering it. And while we're all well aware of how perverted copyrights have become, traditionally they mainly tried to protect published works, not secret ones. (Of course, there is good reason to protect manuscripts that are intended to be published in the near future, lest pirates cut the author off at the pass, as it were, but it is important to keep this from being abused; if an author has no intent to publish, or is being ridiculously slow, then, setting aside whatever right of privacy implications might arise, copyright policy would favor the pirate; creative works are only good for the public when the public can get at them)

And no simply because it is available on a particular URL for download it is NOT free of licensing nor do you even have permission to download it.

True. Merely because a work can be accessed at a particular URL doesn't mean that everyone has the right to do so where it would infringe to do so (and since downloading is necessarily copying, permission or an

Re:Here we go.....

[zappepcs]

This is exactly right..... if it is published, it is "in" the public domain. At this point, the auther or copyright holder no longer has right over distribution. period.

EMI has no right over this, they have claimed something that is false, and published the works for free, as in anyone can have a copy without license and without agreement. It's free for the taking. There can be NO ad hoc after the fact licensing. It was put in the public domain without licensing, and is therefor public domain. The argument is moot..... EMI fucked up.

Re:Here we go.....

[bl968]

"I own the copyright to that music, I grant you a license to listen to it and do anything with it you wish as long as you don't give it away or try to sell it". Pretty standard license and actually I think encapsulated in the copyright law itself.

You also run into the issue that if I only license the music and my copy is damaged or lost, I then have the right to demand a replacement so that I can exercise my license. Currently none of the record companies will do so. They will instruct you to go out and purchase a new copy of the recording.

This is where the you license not buy argument proves to be fallacious.

Re:Here we go.....

[cpt kangarooski]

This is exactly right..... if it is published, it is "in" the public domain. At this point, the auther or copyright holder no longer has right over distribution. period.

Whoa there, Tex.

The 'public domain' is a term of art, which here basically means that a work is not copyrighted. Since copyrights are not absolute rights over a work, but are instead more limited, one could say that a copyrighted book is in the public domain with regard to the right to read it -- since reading is not a right governed by copyright -- but this wouldn't be the same as saying the work as a whole is in the public domain.

Under the current law, publishing a work does not place it in the public domain overall. Further, the copyright holder does have the exclusive right of distribution. There are exceptions to that right, such as first sale, but it's quite wrong to say that the copyright holder can't control any aspect of the distribution of a work merely because it is published.

It was put in the public domain without licensing, and is therefor public domain.

No, it was put on the Internet. There's no indication that it is in the public domain, i.e. that all the copyright holders (and I assure you, the record company is not the only one) have given up their copyrights willingly, or have lost them through some operation of law.

This being the case, downloading the music without a license would be infringing. So just to download it, there has to be at least an implied license -- implied from the conduct of the record company in putting it on the net in the fashion they did -- to make new copies (since that is an unavoidable step in downloading anything). What limits, if any, will be read into that implied license are unclear, but important to know.

Re:Here we go.....

[cpt kangarooski]

You also run into the issue that if I only license the music and my copy is damaged or lost, I then have the right to demand a replacement so that I can exercise my license.

Well, no. The terms of a license can be anything under the sun. A right to guaranteed access to any, or to a particular copy, of a work is a term that might be present, but certainly doesn't have to be. A license is a permission, basically a promise of the licensor not to sue the licensee for the specified things the latter is doing that are normally unlawful. It doesn't oblige the licensor any more than that, unless it says it does.

For example, let's say that I give you an easement to go across my land when, due to flooding, your normal way off your land is impassable. That doesn't mean you have the right to insist that I divert a lot of water into your property so that it floods and you can make use of the easement. It's only a right you can use when other circumstances come together. The analogy isn't perfect, but hopefully clear enough.

A cheap copyright license might merely be permission to do something. Like upgrading a site license from 10 seats to 100 -- all you really need is a serial number to satisfy the installer, not yet another CD identical to the CD you've already got.

A more thorough license might include the right to access a particular copy -- like the CD included with the package -- but not to access any other copies.

The best license -- and negotiated licenses will often include these sorts of terms -- can get you access to any copy the licensor can access, in particular master copies that most people normally don't get to use, if quality is relevant to the project.

All this having been said, CDs aren't ordinarily licensed in the retail environment, because what occurs when you get one is quite clearly a sale. There aren't even licensing terms, generally. "For private use only" isn't a licensing term, it's a reminder that copyright covers public performance, but not private performance. Private listening can't be licensed, because the copyright holder doesn't have a right to prevent people from doing it, which would be the foundation of granting a right to let people do what they otherwise may not.

Re:Here we go.....

[zappepcs]

From wikipedia:

The distributor of the cult film Night of the Living Dead, after changing the film's title at the last moment before release in 1968, failed to include a proper copyright notice in the new titles, thereby immediately putting the film into the public domain after its release.[23] This provision of US copyright law was revised with the United States Copyright Act of 1976, which allowed such negligence to be remedied within five years of publication.[24]

I was not aware that you are allowed to fix your screw ups like this.

Despite that, there is something inherently wrong with EMI et al releasing works free to the public in an immensely easy-to-copy form, with no license or copyright notification and then expecting the law to support them in trying to control further distribution. IANAL but I bet there are cases to support such an act (stupidity) being rewarded with exactly what it deserves: no support from the law. Any judge and of course any consumer has a right to expect that if it was free to download and was downloaded without warranty or copyright or license, it is free to distribute further. That is to say that in view of the RIAAs litigation war on consumers, if a music work is released this way, it is fair to assume it to be free of copyright issues. Further, it is fair to say that a consumer would have a right to expect that such a work is free of copyright infringement issues and they can redistribute as they please.

The RIAA and others have discovered that once a work is in digital form, controlling further distribution is much like nailing gelatin to a wall. When a record company releases a work in digital format sans license or copyright notice, they have no right to expect that further distribution will not occur. Any thinking otherwise is foolish.

Yes, your honor, I left my two new $100 bills on that park bench in the NE corner of city park, and when I came back they were gone. Then two hours later in a restaurant, the defendant was overheard telling how he found $200. He stole my money!!!! The sound of a gavel banging is heard as the judge has the man thrown out of the courtroom.

Or perhaps a closer thought is: While I was walking downtown I was approached by a man wearing a sandwich board. The sign was in support of re-election of Judge Whopner. I initially went to ignore him, but the man asked if I knew where to get free coffee. I like coffee, so I stopped and replied that I did not. He then pointed out that TrekDollars coffee shop was giving away free coffee today, all the while displaying his sign so that I might read it. I thanked him and walked around the corner to get a free cup of joe. Apparently it's their 10th anniversary of business today or something like that. They didn't ask where I heard about the free coffee, nor did they enquire as to how I would use it. After all, it's free coffee.

IANAL, but IMO if the law generally holds these examples as true and useful, then copyright is being used wrongly in many cases. I believe this is one of them.

Re:Here we go.....

[cpt kangarooski]

I was not aware that you are allowed to fix your screw ups like this.

You should see 17 USC 104A.

Despite that, there is something inherently wrong with EMI et al releasing works free to the public in an immensely easy-to-copy form, with no license or copyright notification and then expecting the law to support them in trying to control further distribution.

Well, there may be a copyright notice embedded in the metadata of the file; I'd hope so, at least. And as already noted, there has to be at least an implied license to permit downloading, or else no one could lawfully download the track to begin with. Typical /. posts don't bear an express license, but the mere fact of posting here causes the poster to implicitly grant everyone a license to download the posts in order to be able to read them. Whether further distribution is lawful or not will depend pretty much entirely on the terms of the implied license.

That is to say that in view of the RIAAs litigation war on consumers, if a music work is released this way, it is fair to assume it to be free of copyright issues. Further, it is fair to say that a consumer would have a right to expect that such a work is free of copyright infringement issues and they can redistribute as they please.

That's no good, really. Currently, it doesn't matter whether or not a work appears to be copyrighted. If it is copyrighted, even if you in good faith and after reasonable investigation conclude otherwise, it doesn't get you off the hook for infringement, a strict liability offense.

Yes, your honor, I left my two new $100 bills on that park bench in the NE corner of city park, and when I came back they were gone. Then two hours later in a restaurant, the defendant was overheard telling how he found $200. He stole my money!!!! The sound of a gavel banging is heard as the judge has the man thrown out of the courtroom.

Ah, well, actually, there is not really a finders-keepers rule. If the plaintiff could prove that the money the defendant found was the lost money, then the plaintiff could demand it back. The proof is the hard part, but it is possible. When you find lost, but not abandoned, property, then while you can get rights to it, your rights are superior to everyone else, but inferior to the rightful owner, who you are obligated to return it to, if he ever shows up. There's actually plenty of cases about people finding lost money and the various arguments over it. OTOH, it's not stealing, if it really was lost; to fail to return it would be stealing, though.

IANAL, but IMO if the law generally holds these examples as true and useful, then copyright is being used wrongly in many cases. I believe this is one of them.

Well, this is just a generic deep linking case, AFAICT. Instead of a news article, the content in question is a sound recording, but that makes no difference. The first sale thing is just an interesting side-effect.

More nonsense

[Anonymous Coward]

I'm an ex-MP3tunes employee. Michael Robertson is a scumbag. He's repeatedly fucked partners (we had a deal with Warner Music to sell physical CDs and provide the customer with MP3s instantly -- he decided to sell just the MP3s, so they got pissed off and shut us down the next day; driving away partners and shutting off legitimate business channels is a great way to fail), abused employees, etc. MP3tunes is down to 4 people from its height of 14, due to his complete and utter incompetence. Linspire is dead due to him stealing money (read Kevin Carmony's blog for all the dirty details, and there's far more that isn't there). SIPPhone is dying due to him not spending money on his companies and pocketing it instead.

As much as I support many of his efforts, he's a snake in the grass and everyone knows it now. There's not a single respectable company that's willing to come within a mile of him due to his previous actions, and this is his dying breath.

I can only hope this bankrupts him so he'll stop hurting people

P.S. When this lawsuit began, he posted on his blog about them trying to "take his minivan". He doesn't mention his massive ranch in San Diego, his Lexus (which cost about two of his (extremely underpaid) programmers' yearly salaries), or his $20M beach house in Del Mar. Fuck MR.

Re:More nonsense

[Anonymous Coward]

Btw, if anyone is interested in the Warner ordeal, it was under the name AnywhereCD to insulate the core MP3tunes company.

Re:More nonsense

[PCM2]

Michael Robertson is a scumbag.

I thought he sounded familiar. As parent mentions, here's a link to the blog of Kevin Carmony, former President and CEO of Linspire, for similar-sounding story.

First Sale Doctrine, maybe?

[Anonymous Coward]

Sounds right to me. You can't just distribute a copyrighted work willy-nilly if you are not the copyright holder (or a licensee).

On the other hand, there is also the right of first sale, which says that if you purchase a copyrighted work, say a CD full of music, you have the right to sell that CD to someone else as long as no copies are made. I'm not an expert on this limitation on copyright, so I'm not sure how it works with digital non-software files. If I legally download a free MP3 file from a valid distributor without any kind of licensing agreement, is there a legal restriction that stops me from sending that file to someone else, provided that my file is also deleted?

Maybe "free" isn't considered a sale...

Re:First Sale Doctrine, maybe?

[Anonymous Coward]

Maybe "free" isn't considered a sale...

Thinking further, this would suggest that you couldn't sell or give away a promotional CD given to you by a music label, which I'm sure you could. So I don't know if "free" is really material here...

Re:First Sale Doctrine, maybe?

[ubrgeek]

Maybe there are exceptions, but not usually. When I would do music reviews the CDs we received were VERY clearly labeled, "For Promotional Purposes Only. Not For Sale."

Re:First Sale Doctrine, maybe?

[ckthorp]

The label could also say that you have cooties. Would you believe that too?

Re:First Sale Doctrine, maybe?

[Anonymous Coward]

Didn't you read this?

Re:First Sale Doctrine, maybe?

[whoever57]

Thinking further, this would suggest that you couldn't sell or give away a promotional CD given to you by a music label, which I'm sure you could. So I don't know if "free" is really material here...

There was a lawsuit about this and the eBay seller who was selling promotional CDs won the right to continue selling them.

Re:First Sale Doctrine, maybe?

[Zordak]

To send your digital file, you have to make a copy of it. That would violate the copyright if you don't have permission. I suppose you could give somebody the physical disk it's on and you'd be okay (legally, even loading into RAM is making a copy, but if you are a legal owner of a copy, the law gives you a right to make temporary copies in RAM).

Re:First Sale Doctrine, maybe?

[russotto]

I suppose you could give somebody the physical disk it's on and you'd be okay (legally, even loading into RAM is making a copy, but if you are a legal owner of a copy, the law gives you a right to make temporary copies in RAM).

Actually, it doesn't. 17 USC 117(a) applies to computer programs only, not music. Even the RIAA hasn't tried to play that card, however.

Re:First Sale Doctrine, maybe?

[Anonymous Coward]

It may be that he in fact does have cooties.

Re:First Sale Doctrine, maybe?

[profplump]

You could probably rig a disk to be read-once -- to that the physical act of reading from the disk simultaneously scrambled the data so it could not be re-read.

More to the point though, you could easily open a file, unlink the inode, read the file through out to the network, then close the file. The data would still exist on disk if you looked for it, but the file would be sufficiently deleted for copyright purposes. And if they hold that it's not I hold that all audio CD players with a no-skip buffer are devices designed to circumvent copyright.

Re:First Sale Doctrine, maybe?

[afidel]

Were they received unsolicited through the mail? If so you were free to do with them what you wanted no matter what the label said.

Re:First Sale Doctrine, maybe?

[poetmatt]

You are correct in assuming that right of first sale still applies, which is the issue here.

If you give something away for free, you no longer technically own it. It's impossible to prove ownership and also impossible to claim it. As it is intangible it makes it ever more difficult.

This is just Capital bitching that they don't have their hand in the pot even though they already took their hand out intentionally.

Re:First Sale Doctrine, maybe?

[poetmatt]

Would never work.

All you have to do is copy the data as it is unscrambled or as it is read in the first place - make an outfile as you run the stuff and the copying is complete. That is so easily done that I learned how to do it in Pascal for exe files back in highschool!

Not trying to be ad hominem, just saying that such an idea is simply not feasible.

Re:First Sale Doctrine, maybe?

[Kindaian]

"free" is considered a sale for the purposes of the law.

The issue is the "copy"...

And nope, linking isn't copying...

Re:First Sale Doctrine, maybe?

[Kindaian]

...is there a legal restriction that stops me from sending that file to someone else, provided that my file is also deleted?

The problem is in the details...

How do you prove that you deleted the file if needed to prove compliance with the law?

It's better just to provide a link... to the file or just to the page.

If you want further protection, link to a search engine instead of the page itself...

That way if the copyright holder asks for you to remove the link you just say... but i don't link to your site. I just link to "example.com" (insert search engine of preference). ;)

Re:First Sale Doctrine, maybe?

[Anonymous Coward]

Even the RIAA hasn't tried to play that card, however.

Actually, I remember they tried to stop the sale of used CDs, but they didn't do very well in court.

Re:First Sale Doctrine, maybe?

[PitaBred]

I'd like more people to call it the "Just 'cuz you said it doesn't make it so" precedent ;)

Re:First Sale Doctrine, maybe?

[lysergic.acid]

and yet every label knows that 99% of the promo CDs they send out will just end up in the used bin at local record shops.

we try our best to mark promo CDs as such. record companies used to punch holes in the album covers of their LPs meant for promotion use or print "white label" records to distinguish them from the retail product. these days we just use sharpies to write "PROMO" on the covers, but it really is a futile effort. if you go to any mid-sized record store with a used/second-hand section, you'll still find tons of promo materials being sold.

occasionally we'll come upon our own promo CDs being sold at a record store, and in those situations we'll ask the owner to take them off the shelves or just buy them back. but as far as i know, it's not actually illegal to sell promo CDs.

and regarding the relevance of Capitol Records distributing free mp3s to this case, i think it has to do with the plaintiff's claim that MP3Tunes has "severely and irreparably [injured] Plaintiffs and other copyright holders by eroding legitimate sales of music through both traditional and online channels." i think those claims are dubious at best to begin with. but if Capitol Records is already distributing their own music all over the web where anyone is free to download it, then they can't really claim that MP3Tunes is eroding their sales simply by allowing their users to access their own uploaded music from any computer with an internet connection.

i mean, they might as well sue wireless router or S/PDIF cable manufacturers for illegally distributing copyrighted content. it's absurd. if i want to upload copyrighted content to my web server and access it from other computers, that is my right. this kind of "distribution" (if you can even call it that) should be protected under fair use, just like bringing a CD to a friend's house or even lending it to them.

Re:First Sale Doctrine, maybe?

[Anonymous Coward]

where's the not-ADD-friendly mod?

Re:First Sale Doctrine, maybe?

[LrdDimwit]

Absolutely.

Re:First Sale Doctrine, maybe?

[mabhatter654]

MP3Tunes claims to use fair-use rules to allow you to pipe your music where you want it. According to them you would put the music that you "own" into a "locker" and they would share it to you on a phone, iPod, or thru the web to work or school. According to them legally it's the rights to "your" copy that you are moving...

but the labels are suing them for charging for running a service to make sure the fair-use rules are followed and not rampant illegal file sharing. It's certainly a grey thing MP3Tunes is doing, but for the label to say MP3tunes is taking away profits, then offer the same music for free and no DRM.. but not to legit customers like iTunes or other MP3 services like emusic is a bit two faced. Going to court and asking for damages is out of line.

Re:First Sale Doctrine, maybe?

[Anonymous Coward]

'sale' in this case is the exchange of goods. If i mail you a CD, even if I call it a demo, First sale applies.

Free isn't an issue, its yours now. Period. Your property.

Re:First Sale Doctrine, maybe?

[Jurily]

How do you prove that you deleted the file if needed to prove compliance with the law?

You don't. It's not your job. It's the plaintiff's to prove otherwise.

Re:First Sale Doctrine, maybe?

[91degrees]

It would probably be considered fair use. A much loved legal concept here:) The RIAA would be hard pressed to show that that displaces a sale and personal use is generally reasonably well protected by copyright.

But more to the point, the RIAA don't care if people do this. They're generally smart enough to realise that copying for personal use does increase sales.

Re:First Sale Doctrine, maybe?

[ozphx]

He is on +2 Funny which is a good enough label for me to believe he is funny...

Re:First Sale Doctrine, maybe?

[mpe]

Maybe "free" isn't considered a sale...

AFAIK there is no special exemption for something being "free". Regardless of if it's "buy one get one free", "free with...", "all you can eat" or even "given away". If this was possible sellers would soon be finding ways to abuse such exemptions.

Re:First Sale Doctrine, maybe?

[mpe]

Maybe there are exceptions, but not usually. When I would do music reviews the CDs we received were VERY clearly labeled, "For Promotional Purposes Only. Not For Sale."

Just stating this dosn't make it so. IIRC there is case law that such labeling is null and void. It may also be relevent is the supplier provides a reply paid envelope for return and if CDs were solicited or unsolicited, even who the recipient is...

Re:First Sale Doctrine, maybe?

[mpe]

we try our best to mark promo CDs as such. record companies used to punch holes in the album covers of their LPs meant for promotion use or print "white label" records to distinguish them from the retail product. these days we just use sharpies to write "PROMO" on the covers, but it really is a futile effort. if you go to any mid-sized record store with a used/second-hand section, you'll still find tons of promo materials being sold.

Which may well increase the resale value. Since they are rarer than regular retail copies.

Re:First Sale Doctrine, maybe?

[oliver wright]

Here's the right answer: No, its not "yours now... [p]eriod...your property." No, "copy" is not the issue (at least not in the contexts posited by those insisting it is). And no, you cannot sell a promo copy given to you by a music label. That's precisely why they label it a "promo" copy--to retain ownership and all the attendant rights. You guys should be little more careful with unequivocal assertions, lest someone rely on them to their legal detriment. God help if you are lawyers.

Re:First Sale Doctrine, maybe?

[arth1]

This is just Capital bitching that they don't have their hand in the pot even though they already took their hand out intentionally.

According to the summary, it's not Capitol bitching, it's MP3Tunes.

Re:First Sale Doctrine, maybe?

[Dragonslicer]

If you give something away for free, you no longer technically own it. It's impossible to prove ownership and also impossible to claim it. As it is intangible it makes it ever more difficult.

If that were true for copyrighted work, wouldn't that make the GPL (and really any distribution license) completely unenforceable?

Re:First Sale Doctrine, maybe?

[TheoMurpse]

If free weren't considered a sale, a record company would sell you the disc as a piece of art (cover art) and give you the music pressed on the disc for free.

Re:First Sale Doctrine, maybe?

[Anonymous Coward]

Promo music from labels usually have part of the UPC symbol cut out and say things like "not for resale" and once in a while some text about the label being able to request it's return at any time. But I've never heard of them requesting the return of the item.

Re:First Sale Doctrine, maybe?

[mazarin5]

Adding to this, I think the crux of that case was that the promoter sent the CDs unsolicited through the postal service. The law, more or less, is that if you receive something in the mail unsolicited, it's yours to do want you want with, regardless of any sort of license or contract that comes with it. In order for terms to be enforceable, they have to be agreed upon before delivery.

In the eBay case, this was essential; as far as the court was concerned, the seller had auctioned up a regular CD, and the promotional no-resell terms were unenforceable because the CD was unsolicited.

Re:First Sale Doctrine, maybe?

[mysidia]

But in that case you are copying and redistributing, subjecting you to copyright.

Maybe if you had only downloaded it to a USB stick, or bought it on a USB stick, and you sent them the USB stick, instead of making a copy of the file, you would be in better shape.

Re:First Sale Doctrine, maybe?

[mysidia]

Containing a label that they may request return of them at any time doesn't necessarily mean you have any legal obligation whatsoever to comply with such a request.

For the agreement to be valid, it generally has to have been agreed upon, and signed by (or at least confirmed by) you before the promotional materials were sent to you.

Re:First Sale Doctrine, maybe?

[mysidia]

What's stored in RAM is not music, but small portions of a computer program required to playback the music.

It's not a tangible copy any more than the image in your brain of music you're listening to is a copy. You can only make it a copy by using special software (like a debugger and dumping tools).

A MP3 file is a binary representation of an encoded audio program.

The encoded format is a machine language, and MP3 player software is an interpreter of the machine language.

PC software that converted the audio file to a MP3 has essentially created a computer program in a special language representing the audio.

Re:First Sale Doctrine, maybe?

[mysidia]

Sure it would work, on the right platform (Vista). It's what DRM and trusted computing is all about.

It involves all hardware drivers being digitally signed, before the OS will allow them privileged access.

All access to the unscrambled data is actually restricted to access by approved software running within the Trusted Platform, by placing it inside the secure container at all times, which also implements all hardware restrictions required for DRM.

And a TPM chip on the system BIOS prevents tampering with the OS kernel or bootloader. The trusted platform is completely disabled if any tampering has been attempted to any component.

Re:First Sale Doctrine, maybe?

[Anonymous Coward]

In order for terms to be enforceable, they have to be agreed upon before delivery.

Unless it's software, in which case EULAs somehow still apply. ;-/

It's even simpler than that.

[argent]

MP3Tunes wasn't even distributing the music.

All they were doing was providing links to where other entities (including, as it turns out, EMI) were distributing them.

They're saying "EMI told us to remove these links and said that they hadn't authorized any of this music to be downloaded, and look, here's where EMI was authorizing it..."

Re:It's even simpler than that.

[nine-times]

The whole thing seems slightly tricky to me, in that even if the songs are hosted and freely available on the record label's website, it's still not clear to me by what license people are permitted to download those songs. What I mean is, if I own the copyright to a song, and then I put that song on a website without any kind of a password, does it necessarily follow that I've legally permitted people to download it without regard to any circumstances?

Because certainly it would seem crazy to put a link right on your homepage saying "click here to download this song", and then pursue copyright infringement cases against everyone who downloads it. On the other hand, court cases have recently decided that "making files available" does not equal "distribution", so it seems to me that simply having a file available on an apache server might not constitute an offer to distribute those files. In other words, just because my files are theoretically available online without a password doesn't mean I've given you permission/license to download them.

Re:It's even simpler than that.

[Stanza]

Thank you for explaining that, as I didn't even figure out that from the summary.

After a little research (karma link whoring, here I come!) I figured out the web page providing links to where other entities hosts files is here:
http://sideload.com/

As far as I can tell, it is run by the same guy who runs mp3tunes.com, and is pretty well integrated, but by just going to mp3tunes.com I did not find anything what you are describing. I found it by going through his blog and reading some of his own descriptions of the lawsuits.

Unfortunately, it's a dreadful interface. I was hoping for something to open up in Songbird and hit play, instead, each song opens up a new webpage, and then, if you're using Songbird, only that one track is on the webpage. If you're using a proper web browser, they have javascript players, "load to locker", "load to mobile", with "Download this track" in small font in comparisons to all the javascript options that actually does link to the file in question.

Re:It's even simpler than that.

[TheoMurpse]

The common law has a doctrine called "estoppel." Basically, if A acts in a way such that B believes X to be true, and B would be harmed if X were not true, then X is considered true and A is prevented from enforcing a right against B.

Copyright by estoppel would be when A writes a book of "facts" that are not facts. If B treats the book as fact and uses the facts freely in his own work, A cannot sue him for copyright infringement (A is "estopped" from suing) because facts are not copyrightable.

Perhaps if EMI puts their own music online, they are estopped from suing someone for downloading it? Think of estoppel as an implicit contract.

Free != free to redistribute

[BrianRoach]

Just because someone gives you a copy of their copyrighted work doesn't mean you get to copy and redistribute it.

The owner of the copyrighted work explicitly grants any and all rights regardless of how much they are charging for a copy of the work (even when they are giving it away for free).

- Roach

Re:Free != free to redistribute

[argent]

Just because someone gives you a copy of their copyrighted work doesn't mean you get to copy and redistribute it.

Numerous URLs listed in the September 4, 2007 letter
clearlywere not infringing as they were links to well known and reputable music magazines such
as Filter, Spin, and Paste Store. Nevertheless, relying upon EMI's notice, MP3tunes promptly
removed all of the URLs listed in the September 4, 2007 letter. -- from the PDF

Does linking to other sites that are actually hosting the music count as "copying and redistributing"? Where does that leave Google and Yahoo?

Re:Free != free to redistribute

[Roskolnikov]

Which might lead to a point about providing links;

I checked the links on this doc, most work and only one asked me for any personal information. No click through, no shrink-wrap 'license' just the song presented in my browser. This might be the only complaint EMI might/should have with MP3Tunes, they are circumventing (theory) the presentation/context of this music. The larger gripe, and where EMI should be aimed, but for what ever reason they're not as they (the RIAA) seem to enjoy attacking customers and folks that make finding things easier (index services) are the non EMI folks also providing the music. I hate to put it this way but scumbags or not, MP3Tunes or Google, where does this kind of harassment end? I can find 'filez' just as easy with google as I can with any of the search sites.

IANAL (sounds like a new apple product, no?)

Re:Free != free to redistribute

[Anonymous Coward]

Just because someone gives you a copy of their copyrighted work doesn't mean you get to copy and redistribute it.

No shit.

The owner of the copyrighted work explicitly grants any and all rights regardless of how much they are charging for a copy of the work (even when they are giving it away for free).

- Roach

THEY WERE NOT REDISTRIBUTING IT. They were *linking* to content stored on Capitol/EMI servers, or servers owned by third parties (such as Akamai) for the purpose of distribution Capital/EMI content. The point that they're making in the court submission, if you bothered to read it, was that it was acceptable for parties (maybe Google) to link to it, but not MP3Tunes.

Re:Free != free to redistribute

[BrianRoach]

I read the actual summary of the lawsuit, not the linked page (which I've now read).

They're linking directly to the (unrestricted) .mp3 files, which is interesting, actually.

IMHO, it's being a scumbag, piggy-backing off someone else's server to make money ... but it will be interesting to see what the judge rules.

Of course, those sites actually distributing the mp3s should be denying requests that don't come from their own pages or building in some other mechanism to prevent the direct linking. That would fix that little problem.

Re:Free != free to redistribute

[Dunbal]

Just because someone gives you a copy of their copyrighted work doesn't mean you get to copy and redistribute it.

      No, but it becomes harder to justify $150,000 per copy per title when you a) give them away and b) sell them for $0.99 or so through a third party. Two wrongs don't make a right, but those who abuse the law can't complain when their loophole is closed. In fact, we can ALL breathe a sigh of relief as the pendulum swings back towards the side of sanity for a while.

Re:Free != free to redistribute

[argent]

They're linking directly to the (unrestricted) .mp3 files, which is interesting, actually.

It's what just about every "MP3 blog", including the ones EMI was using, does.

Re:Free != free to redistribute

[Kindaian]

Not exactly...

When you receive a work... you are entitled to sell it at the price you see fit.

Copyright only applies when a "copy" is made... It isn't even remotly related to the "sell"...

Re:Free != free to redistribute

[Jah-Wren Ryel]

IANAL (sounds like a new apple product, no?)

Click it and look, I promise it isn't goatsecx

So, "a pox on both their houses"?

[argent]

Even if he's "a scumbag" that doesn't mean that EMI are angels. Sometimes there aren't any good guys.

Re:So, "a pox on both their houses"?

[Anonymous Coward]

EMI is far from angels, but this is what happens when you stab people in the back. MR incites lawsuits and then plays the "big man trying to take down the little guy" role. It's bullshit.

Appears to be Accurate

[bill_mcgonigle]

I used these URL's (from the PDF) and they appear to be functional:

http://capi001.edgeboss.net/download/capi001/lilru/dontilookgood/lil_ru_dont_i_look_good_cl.mp3
http://capi001.edgeboss.net/download/capi001/beastieboys/misc/acapella/Car_Thief_A_Cappella.mp3?ewk13=1
http://capi001.edgeboss.net/download/capi001/doves/skystartsfalling/audio/skystartsfalling.mp3
http://angel.edgeboss.net/download/angel/seth_lakeman_audio/digitalep/king_and_country_128k.mp3
http://mute.edgeboss.net/download/mute/xx_teens/darlin_original.mp3
http://mute.edgeboss.net/download/mute/moby/mobylastnight_sampler.mp3
http://www.emichrysalis.co.uk/vincentvincentandthevillains/music/track0.mp3
http://emichrysalis.co.uk/herculesandloveaffair/downloads/16_11_07/Hercules_Theme.mp3
http://www.definitivejux.net/store/catalog-product/US-A4T-04-173-00.html
http://goldenhorse.co.nz/mp3s/Dont%20Wake%20Me%20Up.mp3
http://goldenhorse.co.nz/mp3s/Fish.mp3
http://www.parlophone.co.uk/sparklehorse/download.php?FILENAME=shadeandhoney.mp3&DOWNLOAD=1
http://www.parlophone.co.uk/mailers/morningrunner/Cant_Get_It_Right.mp3
http://www.parlophone.co.uk/babyshambles/timesdownload/download.php?DOWNLOAD=1&FILENAME=babyshambles-lost_art_of_murder.mp3
http://www.becrecordings.com/christaylor/1.mp3
http://www.becrecordings.com/christaylor/2.mp3
http://www.radiomute.com/rmmusic/fieldrecordings-mad%20world.mp3

(slashcode is attempting to auto-link in a <code> block... a pity for those who understand xargs)

Re:Appears to be Accurate

[wasabioss]

You forgot the gay song: http://capi001.edgeboss.net/download/capi001/katyperry/audio/katyperry_usogay.mp3

Re:Appears to be Accurate

[Anonymous Coward]

Its alright, the people who understand xargs also understand sed.

Re:Appears to be Accurate

[cyn1c77]

Man, I just listened to those songs. Ugh. I'd give them away for free too.

Goodbye, EMI. Hello, MP3Tunes.

[Tackhead]

Michael Robertson, has accused the plaintiffs EMI, Capitol Records, and other EMI record labels of flooding the internet with free MP3s of their songs for promotional purposes, 'free to everyone (except, apparently, MP3tunes).'

It reads like a bandful of the world's smallest violins, all playing in orchestral majesty. In fact, I feel a song coming on!

Is he suggesting there's an unlimited supply?
That there's no reason why?
Or with the ad links in the frame
He's cashing in on Slashdot fame?
(Who?)
EMI! EMI! EMI!

Capitol's lawyers makin' fuss,
From edge-served networks, download us,
An unlimited amount,
They save on bandwidth, in and out.

When mp3.com was crucified,
For business models that had died,
It was a website that was rivaled by none,
(never ever never...)
And you thought that he was faking?
That it was all just money-making?
You don't think EMI will steal?
Even if they lose their last appeal?

Oh, don't judge a band by its cover,
Unless another you discover,
And blind acceptance is a sign,
of RIAA fools who stand in line
(like)
EMI! EMI! EMI!

Unlimited edition,
With an unlimited supply,
That was the only reason,
MP3.com said goodbye,

Unlimited supply (EMI!)
And there is no reason why! (EMI!)
But with the ad links in the frame, (EMI!)
He's cashing in on Slashdot fame!
Though Beam-it bent UMG's rules (EMI!)
R.I.A.A.'re still useless fools (EMI!)
Unlimited supply.

Hello, MP3Tunes. Goodbye, EMI.

- With apologies to the Sex Pistols, and you should all be grateful I can't sing, or I'd have dubbed it onto the original track and uploaded the result to MP3.com as a parody.

All I want to know is that if Robertson wins, will he carry out on Sigue Sigue Sputnik's 22-year-old threat to Buy EMI

Monetary Damage Claims?

[tortoise42]

Perhaps this would stifle RIAA claims of "monetary damage" resulting from illegal electronic re-distribution.

Compared to other heavyweights..

[lmnfrs]

I think this stuff is standard practice for a big organization in a powerful position. Yesterday I tried buying coffee beans from a small (2 location) coffee shop located in a mall. Apparently Starbucks had leased a spot elsewhere in the mall and negotiated a clause into their contract with the mall. The small shop could sell Starbucks beans or make coffee with their own beans, but was forbidden from selling their own beans.

I'm not sure why that situation doesn't qualify as anti-competitive, but controlling distribution options is a basic part of some businesses' plans.

Re:Compared to other heavyweights..

[GiMP]

I once came across something similar where a small restaurant couldn't even sell brewed coffee because of a Starbucks in the shopping center! Likewise, Starbucks had a contract with the landlord...

Re:Compared to other heavyweights..

[Kjella]

I'm not sure why that situation doesn't qualify as anti-competitive, but controlling distribution options is a basic part of some businesses' plans.

Being anti-competitive is not enough, you have to be effectively locking your competitors out from the market, not only the specific venues of sale. In general, there's no requirement that say Apple stores should carry non-Apple computers or that a mall should carry alternative coffee shops. If it's not required, you can usually agree by contract not to. I think it would take a rather extreme monopoly to change that, as it's easily argued that if you wanted different goods you could get them right outside the mall area.

Re:Compared to other heavyweights..

[ScrewMaster]

I once came across something similar where a small restaurant couldn't even sell brewed coffee because of a Starbucks in the shopping center! Likewise, Starbucks had a contract with the landlord...

Well, Starbucks may be a "Fair Trade" company and all that, but some of their business practices need a closer look, I think.

Re:Compared to other heavyweights..

[Anonymous Coward]

McDonald's has a similar attitude. If they either rent land in a shopping center for their own location, or rent some of their own land out to be used for the shopping center, they will often add a clause to the lease that forbids other fast-food restaurants and/or any other store that brews coffee.
Anecdotally, we recently had a Starbucks inquire in my hometown about an empty retail space in a shopping center - but could not move there, because the McDonald's had exclusive coffee-selling rights.

Re:Compared to other heavyweights..

[CODiNE]

Malls sometimes have weird rules in place to regulate competition among their leasers. For example when I was a kid the mall by my house had a magazine/newspaper store and upstairs a baseball cards / comics shop. Officially it was a baseball card shop, and the comics were kept in a limited area in the back of the shop. I asked the owner why they didn't have more comics there and he explained that since they were within ____ feet of the magazine shop they weren't allowed to have the comics use up more than ___% of their store space. It didn't matter that the magazine shop only had the current month's comics and the card/comic shop only had back issues, since they both had "comics" the mall decided to regulate the sales.

Now I don't know if that's standard for malls everywhere or just a matter of the larger shop getting favors to keep the smaller shop from growing.

Re:Compared to other heavyweights..

[GiMP]

The small guys do this too, to be honest. In my town, we have two small mom and pop coffee shops that are open for a few hours a day in the morning. They are not open when I'm looking for entertainment, and they don't provide internet (which if they did, I might go there earlier). In the biggest intersection in town, the corners consist of two gas stations, a park, and an empty lot (which is quite an eye-sore). Starbucks wanted to open there, but the small coffee shops lobbied to prevent the township from allowing the permits to build.

While generally, I would prefer having local businesses as opposed to mega-corporations like Starbucks, I cannot support local businesses that simply refuse to complete.

Re:Compared to other heavyweights..

[stephanruby]

I'm not sure why that situation doesn't qualify as anti-competitive, but controlling distribution options is a basic part of some businesses' plans.

The difference is, that the landlord owns the mall. The real racket begins when governments start implementing those measures. In the city of San Francisco for instance, the demand for taxi cabs is so high, that taxi cab drivers make more money not working and just renting out their cab medallions to the taxi cab companies that don't have any. Now in New York, apparently black people can not get cabs, well in San Francisco during commuting hours, both white and black people can't get cabs, and the only cabs on the road are either there to taunt us -- or they're just on their way home themselves.

Recently, the insanity has just been increasing, now the SFO airport (its own separate entity, but still government funded and its trustees government-appointed) is going to drastically reduce the number of airport shuttle companies making curb pick ups. So if you're flying into SFO, you're not just going to contend with having to pay three times as more for normal food items, but you'll probably have to pay three times as more and wait three times as long just to get a shuttle out of there (better start going by the Oakland Intl airport or the San Jose Intl airport from now on).

oblig Riddick quote

[irtza]

In normal times, evil would be fought by good. But in times like these, well, it should be fought by another kind of evil.

Re:oblig Riddick quote

[rhizome]

In normal times, evil would be fought by good

Outside of a book, where else have you found pure good battling against pure evil? HINT: it doesn't exist.

Re:oblig Riddick quote

[cdrdude]

You mean other than NYCL?

Re:oblig Riddick quote

[the_wesman]

Outside of a book, where else have you found pure good battling against pure evil?

in movies, silly

Re:oblig Riddick quote

[Kjella]

In normal times, evil would be fought by good. But in times like these, well, it should be fought by another kind of evil.

I think you'd do better trying to explain every concept from selfishness. I'm of the opinion that certain people should die, but rather that I'd not want to deal with everyone that would want me dead. Likewise a concept like property, who wouldn't want free swag? The problem would be keeping everyone else from stealing my swag. The reason copyright is in trouble is that very few need copyright, while most people would gain if copyright disappeared. It's like taxes for the rich, it's fine because the rich are so much fewer than the poor that it's alright. The aristocracy has tried fighting the will of the people before, it usually has been bloody and unsuccessful. But give it up or lose it, in a lose-lose situation there's no telling what'll happen....

Re:oblig Riddick quote

[bwcbwc]

Well, not necessarily. Evil fighting evil for worldly power is the normal state of affairs.

One reason for separation of powers in the US constitution and the adversarial construction of our courts is to provide a mechanism for greedy scumbags to rat each other out. The founders recognized that in every corrupt scheme there comes a point where some of the criminals either get scared of getting caught or decide that it's more profitable to turn their ex-partners in.

What's NewYorkCountryLawyer's angle on this one?

[Anonymous Coward]

I couldn't really figure out what NYCL's summary was trying to say here, other than link to the 10-page declaration as simple info.

Are we meant to read something into this, other than the general "Labels are doing shenanigans again" message?

Or does this feed into the RIAA issue or even into current cases in some specific way?

Thinking about this makes me laugh.

[Roskolnikov]

1. The links work.
2. Several of us have used them.

thinking about the suit (providing links to music)
this document is nice piece of work, in writing it, reading it,
linking to it, we have all taken part in the supposed violation of
EMI's rights.

many words come to mind but the choice of mad world as one of the linked songs, well thats enough for me.

Re:What's NewYorkCountryLawyer's angle on this one

[NewYorkCountryLawyer]

I couldn't really figure out what NYCL's summary was trying to say here, other than link to the 10-page declaration as simple info. Are we meant to read something into this, other than the general "Labels are doing shenanigans again" message? Or does this feed into the RIAA issue or even into current cases in some specific way?

I wasn't really "trying to say" anything, just reporting on some interesting facts. Yes this plays into all of the record companies' stupid cases, in MANY ways, relevant to MANY issues. No way could I now start discussing that in a public forum, but lawyers representing defendants will have a field day with this stuff...

Is this just a "deep linking" situation?

[Sloppy]

The summary is screwy. From RTFA is it looks like Robertson is saying that EMI, not Robertson's company, was distributing the files in question, and Robertson just linked to EMI's servers. I don't think Robertson is saying, "They give it away for free, so I can too;" I think he's saying, "They give it away for free, and we help people find it."

It looks like mp3tunes.com is a search engine, not a file server. (Am I missing something?) If true, then I hope EMI is punished for their pointless harassment of Robertson.

Re:Guys at Pirate Bay Have Some Interesting Insigh

[Anonymous Coward]

Don't hit the link.You get some stupid video and a bunch of popups.

I email 10's GB of illegal MP3s back to the RIAA

[gelfling]

I want to make sure they get what they're asking for so I hammer them tons of ill gotten files. Regularly.

Re:What's NewYorkCountryLawyer's angle on this one

[jorghis]

No way could I now start discussing that in a public forum

Your posting history says otherwise. :)

pure good battling against pure evil

[spazdor]

http://lessig.org/

EMI is one of the better labels

[unity100]

they produce and distribute their cd content without any shitty drms. they are a breeze to rip to mp3. thanks to them, i have 24 cds' worth classic music pieces on my computer as mp3 without any issues.

when i acquired my first classics collection set and put on random shuffle continually on my 6 cd changer set and used that way, i blew it off in around 1.5 months. a pioneer 6 cd changer - gone.

then i realized i should rip them. ghastly task, due to shitty drm they place on cds. but when i attempted it went effortless. great quality. only later i learnt that emi does not put drm shit on their cds. they are trying to adapt to the modern times.

and this website, whose sole purpose and means of existence is internet culture, is suing THAT label, instead of RIAA whores ??!?

i wouldnt do anything with mp3tunes if it was the last website on earth, after this point. they can shove all their services up wherever they see fit now.

Re:EMI is one of the better labels

[Anonymous Coward]

"EMI classic" might be nice, but the rest of the british emi group labels are the most evil ones among the RIAA/BPI evils you can imagine!

Claiming that EMI does no DRM shit with their CDs is simply false! (they might not do it anymore, but EMI was one of the most active ones at least here in europe with their CDs)

Re:EMI is one of the better labels

[KingAlanI]

EMI *was* the first (only) major label to allow DRM-free tracks on the iTunes music store.

was

[unity100]

no cd i bought from emi had any drm on it. when i see emi label now, i buy without any worries.

and im in turkey, so probably we are using the same source for supplier.

Firefox NOSCRIPT says your Rick Roll fails it!

[Anonymous Coward]

http://smouch.net/lol/rick_head.gif
http://smouch.net/lol/rick_head_2.gif
http://smouch.net/lol/document.layers%5B
http://smouch.net/lol/document.getElementById(
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http://smouch.net/lol/window.moveTo(1599,1199);
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http://smouch.net/lol/window.moveTo(1599,0);
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http://smouch.net/lol/dynamicdrive.com
http://smouch.net/lol/snow.gif
http://dynamicdrive.com\/

Beckerman vs noscript

[GaryOlson]

Ray, love your work. But NoScript was blocking 4 scripts on that pdf link. Does ABP and NoScript hurt your revenue projections for ads? Just curious.

Lawrence Lessig's a troll. He's a bookseller.

[Anonymous Coward]

A good battle between evil and evil would be more like Hitler versus Jews. In modern day, this would be "Bush & Democrats" versus ADL/ACLU/NBAACP/KKK/USDA, with the rite-Honourable Chief Justice Monstanto Corporation presiding.

Re:Lawrence Lessig's a troll. He's a bookseller.

[Anonymous Coward]

You're a terrible troll. And a moron.

Waiving Rights?

[Anonymous Coward]

I thought there was a legal principle that you can actually waive (give away) your rights, involuntarily, and once waived you can't reassert your rights. I was told this is the main reason for refusing to answer ANY questions without your attorney being present. I was specifically told that a person can waive their rights and not even realize that they are doing so, because they are not an attorney and they don't realize the consequences of their statements. Once that happens, too bad for you.

Wouldn't the same principle apply to this case?

Re:What's NewYorkCountryLawyer's angle on this one

[Anonymous Coward]

NYCL I love you. I was surprised to find you were the older of the ones pictured on your website, thinking my elders didn't have a clue about technology. For that I am sorry.

You are not on the side of your clients, at least not publically on riaavsamerica blog. You are on the side of what you believe to be true, based on of your countless university hours and countless hours in reality on top of that.

There have been very few people, since I first became aware of politics in the early Clinton days, who took a stand on belief rather than financial or political gain. Your continued investment in the purely informative postings you continue to provide, as well as your cameo commentary on aggregators such as this, suggests you are trying to follow the law, as opposed to following the money.

I could be biased, being on a certain side of the RIAA cause. But I have thought for a number of years -- no one in this country would give up their home for a cause. Few would go to jail for the confidentiality of their sources. If we had a civil war we would struggle to find someone to fight. Because everyone has a decent job, or at least most people do (unemployment isn't that high), and those who don't, don't automatically have to become toilet cleaners.

Our economic status was, for a while, equal to none. And throughout that, you posted information, then questions, then support, then as we see here back to information again, for the good of... not yourself certainly.

Please, do not humor me with a personal reply as you so frequently do here. Instead, accept the thanks of a million geeks who could not otherwise provide any feedback in any fashion.

You are the last starfighter, the last true outpost in American society. If we can't understand the digital revolution and all of the intricacies that it introduces, we are in a world of hurt. And if "we" have cushy enough jobs and a reliable paycheck due to minimum wage hikes, there is no incentive to take the war into a public and therefore personal (or vice e versa) space. I see it with my colleagues and read about it here. No one wants to fight.

So what if you were Skywalker? Or Mowgli? Or for shit's sake Neo... The fight is the same, the truth is the same, the enemy is the same. The fight is the same, and most people don't know it is happening. But if they knew where to look, they might have more than just a feeling.

-- this post brought to you by a number of drugs

A General Principle regarding the Internet

[Douglas Goodall]

I am not a lawyer, but I have been watching the Internet for several decades now. I am somewhat well versed in computer security though. I do remember that if you contact a computer system without permission, there can be consequences. Now we all know that putting files on servers in an unsecured fashion can lead to the files getting loose, and someone could say in court that you did not try to protect you proprietary materials, so you may not have cared. An example was when the source code of the voting machine was available on an open ftp server for a while. The code was assumed to be copyrighted, and was assumed to be proprietary, but was accidentally available.

I know that it helps to put a message on your server that states it is private and not for public use if you expect the connectee to know that. If I had a server that welcomed the public, they might assume the unprotected contents, or materials under /pub were available. If you tell the public to keep out, and place files in a directory called "private" that happened to be unprotected, you could assert later it was not for public access, and you would at the very least be thought a fool for leaving your data laying around.

Laws that prevent spam faxes are based on the concept that connecting to your system without explicit permission could be wrong.

If you noticed some proprietary information on a server that was not protected, and you published the location of it, you would not be doing the owner a favor. But would you be breaking the law? The fact that someone placed data on an unprotected ackamai server could just mean that they placed their data using security through obscurity, and it was not meant to be public, even though it was poorly protected.

What do you think?

You're going to be wrong there too

[Anonymous Coward]

Because there was no license given to make the copy you got in the first place, so you would, under your idealisation of "copyright" have no right to the free song either.

When you make a copy from bearshare, the RIAA and you want that to be considered infringement on the part of the one who made the stream available. But that would be irrelevant if the keeping a copy were irrelevant in copyright as you want it.

Lastly, you and the RIAA (and software companies) DEMAND rights because we haven't "bought" the product, just a license to use. Music, movies, software. License is purchased. And so please prove that the one making the copy has no license. They are free.

Companies also

[BradMajors]

A former employer of mine made a contract with the in house food service company which said that employees are not allowed to make their own coffee.

Re:Companies also

[Anonymous Coward]

100% illegal contract to enforce upon his employees. Make yourself a coffee, take a punishment for it, find a good lawyer and rake in the millions.

Re:What's NewYorkCountryLawyer's angle on this one

[NewYorkCountryLawyer]

NYCL I love you. I was surprised to find you were the older of the ones pictured on your website, thinking my elders didn't have a clue about technology. For that I am sorry. You are not on the side of your clients, at least not publically on riaavsamerica blog. You are on the side of what you believe to be true, based on of your countless university hours and countless hours in reality on top of that. There have been very few people, since I first became aware of politics in the early Clinton days, who took a stand on belief rather than financial or political gain. Your continued investment in the purely informative postings you continue to provide, as well as your cameo commentary on aggregators such as this, suggests you are trying to follow the law, as opposed to following the money. I could be biased, being on a certain side of the RIAA cause. But I have thought for a number of years -- no one in this country would give up their home for a cause. Few would go to jail for the confidentiality of their sources. If we had a civil war we would struggle to find someone to fight. Because everyone has a decent job, or at least most people do (unemployment isn't that high), and those who don't, don't automatically have to become toilet cleaners. Our economic status was, for a while, equal to none. And throughout that, you posted information, then questions, then support, then as we see here back to information again, for the good of... not yourself certainly. Please, do not humor me with a personal reply as you so frequently do here. Instead, accept the thanks of a million geeks who could not otherwise provide any feedback in any fashion. You are the last starfighter, the last true outpost in American society. If we can't understand the digital revolution and all of the intricacies that it introduces, we are in a world of hurt. And if "we" have cushy enough jobs and a reliable paycheck due to minimum wage hikes, there is no incentive to take the war into a public and therefore personal (or vice e versa) space. I see it with my colleagues and read about it here. No one wants to fight. So what if you were Skywalker? Or Mowgli? Or for shit's sake Neo... The fight is the same, the truth is the same, the enemy is the same. The fight is the same, and most people don't know it is happening. But if they knew where to look, they might have more than just a feeling.

Thank you for your kindness. But I am not the last starfighter, I am one of many. And when we are no longer here, there will be others to take our place.

A new pro-openness Senior VP at EMI

[Morgaine]

The following might have some bearing on the recent changes at EMI.

The lead designer and CTO of Linden Lab (the creators of Second Life) Cory Ondrejka left them a year ago, and halfway through 2008 he joined EMI as a Senior VP in digital strategy. Link that with the fact that between himself and CEO Philip Rosedale, they created a world in which all world content belongs to the residents who create it, not to Linden Lab. What's more, they open-sourced the Second Life client, and they have worked very actively with the SL community at creating open protocols.

Inevitably, Cory Ondrejka will have taken some of that with him to EMI.

Such moves do suggest that EMI is on the path towards openness, and that they realize the world is changing dramatically. While that's a long way from making them non-evil, they are at least putting some distance between themselves and the main pack of dinosaurs.

Re:Goodbye, EMI. Hello, MP3Tunes.

[Janek Kozicki]

I had to befriend you for that. I hope you don't mind. Thanks.

nice try assjack

[Anonymous Coward]

You can't sneak in your little troll comment DAYS after I called that troll to account of his hailing to Lessig. You, by far, are the greatest troll to ever live just in thinking that your only recourse is to post a response to a discussion that has long been settled and burried under inactivity; yet you, ol' ye troll of wonder, try to pen your wit as the last stance of irrefute to be sealed by the server's hammer of Slashdot immortality. You are an absolute moron to think it would work out that way, because I'm much too smart to let you call me a moron and get away with it. I look after everything I've said and done on this forum and you will never get away with what you try to say when you think none are looking. Go troll your "buch dich" Rammstein porn on everyone, you second-rate Mike Rowe hack.

Re:nice try assjack

[spazdor]

sage

Constitutional basis of Copyright

[argent]

The reason copyright is in trouble is that very few need copyright, while most people would gain if copyright disappeared.

If that was actually the case, then copyright should be eliminated.

[Congress shall have the 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; -- US Constitition, Article 1, Section 8

That doesn't read "To reward authors and inventors for their work", it reads "To promote the progress of science and useful arts". If copyright can not benefit the public at large by promoting the progress of science and useful arts then it should be abolished.

Personally, I don't believe that to be the case... copyright law needs to be amended, I believe, but not abolished... but I guess that makes me an arch-conservative on Slashdot. :)