No, it's correct. It's your example that is in error. If you buy a book that was made and/or distributed unlawfully, you haven't broken the law. Buying an unlawfully made copy isn't infringement. Making a copy, as you necessarily must when you download, would be infringement, OTOH.
If that doesn't meet the textbook definition of extortion, I don't know what would.
It doesn't, and I guess that means you don't know what would.
It's a settlement. A lawsuit doesn't actually have to have been filed, or be on the eve of being filed, in order to settle. A settlement is merely an agreement between parties to waive legal rights against one in exchange for something of value from the other. It can be anything, from money, to a promise to do, or not do, some particular action, or whatever. RIAA has agreed not to sue eDonkey over this, and now they are absolutely precluded from doing so. Of course, it doesn't stop anyone else, and it only counts as to the subject of the agreement, not other things eDonkey might be liable to them for.
The courts love it when parties settle. And there's no timing issue: you can sell from when the right to sue first exists, all the way to just before the case finally concludes and the right is laid to rest.
Extortion would be if one party wasn't waiving a right to sue, but instead agreed not to do some illegal thing, e.g. burn down a warehouse. And of course, it's not even binding, really.
Almost every single tab out there is another person's interpretation of another artist's work and usually not a direct copy of the tablature from an official tablature book.
A copy can be a copy without being an exact copy. For example, if I copy a book by hand, and I make some typos, or accidently skip over a page here or there, but the book is substantially there, it's a copy. Perfection isn't required. I suppose that in some cases, a tablature could be a derivative work instead. Still, copyright covers both the making of copies and the making of derivatives, so I don't see how it matters.
Aren't interpretive works covered under fair use, especially when it's not being sold for money, and is used for purely educational purposes?
Fair use is a case-by-case affair. There's no uses that are always fair or not. So you need to go through the actual four-factor analysis. Offhand I'd say that you get half of the first factor, as it's not educational, but it is probably noncommercial (so long as there's really nothing commercial, not even ads on the web page). You're being overbroad with regards to educational uses. If I burn a copy of Star Wars and give it to you, I suppose I've 'educated' you as to the contents of the film, but it's obviously not really educational. It needn't be formal, at a school, but it can't be a thin excuse with no substance either. You lose the second and third factors, as the work is creative, and you're using, if not all of it, a very substantial, important part of it. And the fourth factor is a loss because you're harming the actual or potential market for official tablatures, regardless of whether you're giving them away for free or not. You're making a substitute for the copyright holder's version (or possible version).
I'd say that it is not a fair use, but of course, that'll depend on the exact facts of each case.
Even in a civil case, the burden remains on the plaintiff to make his prima facie case. So it works the same, even though civil cases don't deal with concepts like guilt or innocence.
There is a problem with the scrollbars. OSX scrollbars can normally either have both arrows clustered at the bottom right, or one arrow on either end. The preference to change that is in the Appearance control panel.
But there is a third option, which you generally have to set via the terminal, for double arrows at both ends. This has worked in everything AFAIK until now. iTunes 7 appears to have the arrows at the bottom right by default, and only changes to the arrows at each end if that is set. It doesn't honor the double arrows at both ends setting, instead defaulting back to double arrows only in the lower right. And since it apparently doesn't use the standard arrows, like pretty much everything else, this is relevant.
This is pretty minor, but annoying, especially since if I couldn't have double arrows at both ends, I'd have single arrows at both ends, but since I won't change the global setting (since everything else still works with it), iTunes uses the double at one end arrows, which I hate.
If it's easy to fake, then you should present that fact. Then the jury decides whether they believe it or whether they think it's fake, and based upon that, whether they think you did what you're accused of. That's their job. They could go either way.
If you want to exclude evidence, you need a different, better, reason than that it might not be true. Courts determine truth based on evidence.
You can read the Federal Rules of Evidence here. You'd probably want to start with R. 401. The hearsay rules starting at R. 801 would also be relevant.
Statutory damages are calculated on a per-work basis.
So if you make one million copies of a single book, then it only counts once for the purpose of calculating statutory damages. But if you make one copy each of two different books, then that counts twice.
Well, more accurately, the idea is to 1) avoid UPL issues, and 2) avoid the formation of an attorney client relationship, as well as matters of privilege or conflict.
Certainly, though, if someone here wants actual legal advice, they should hire a lawyer licensed in their own jurisdiction.
All that said, I think the earlier post was a joke, in that if what I said isn't legal advice, it must be the opposite, which is illegal advice.
Before filing the suit, RIAA must have gathered some amount of evidence which led them to believe that the defendant was breaking the law to begin with. However, this could be very little evidence, far less than would actually be needed to prove it in court. This is because once you file a suit, you then get to engage in discovery so as to get sufficient evidence. All you need in order to file, pursuant to Rule 11 is "to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances... the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery."
Having filed, they're entitled to gather evidence more easily, by getting testimony, physical evidence, etc. They generally have a right to gather it for the suit, rather than merely asking for it. Federal civil trials in the US are big on discovery. The idea is that there should be no surprises in court; both sides will have ample opportunity to determine precisely what happened. Hopefully, there won't even be a dispute over the facts, making the trial go faster, and ideally it'll get the parties to settle or the case to get dropped, since court time is a valuable commodity.
In any event, what has happened here is that the defendant has filed for summary judgment to dismiss the case. In a trial, there are questions of fact (e.g. did A stab B?) and questions of law (e.g. is it against the law for A to stab B?). In a summary judgment motion, the moving party is saying that there are no questions of fact which will have any bearing on the case, or some portion thereof. Therefore, the case (or the portion of the case for which summary judgment is sought) can be decided by the judge immediately, based purely on the law and the facts for which there is no question. (e.g. A and B agree that A stabbed B, so accepting that, the only issue is whether it was against the law, not whether it happened)
However, often both sides will dispute whether there are material factual questions remaining or not, that is, whether there are disputed facts where a reasonable jury could go either way, and which are important to the case. For instance, if A says that the knife was a toy knife, and B disagrees, this is likely material. But a dispute over the color of the knife likely is not.
Here, defendant is asking for summary judgment because he says RIAA sued the wrong person, and anyway, he didn't infringe. RIAA is saying that they need to gather more evidence so that they can show it to the judge, show that there are material questions of fact which are in dispute, and that they should go to a jury. In order to do this, they need to engage in discovery to find out some of these facts, since they weren't required to have them prior to filing the suit. N.b. that all RIAA has to do is show that there are still issues that need to go to a jury -- they do not need to show that the jury would find in their favor, or that they'd win the eventual case. Even highly disreputable and unbelievable evidence is sufficient to defeat the motion if a reasonable jury might believe it. In summary judgment matters, the court will look at all the facts in the light most favorable to the non-moving party, who is in this case, RIAA. This is because it's the moving party that wants no trial, and so should be required to prove it. The moving party isn't allowed to use summary judgment as a railroad to get the case dismissed before crucial evidence can be gathered, as that would run contrary to the rules allowing for discovery and setting the low threshold for filing.
Honestly, this is all fairly ordinary stuff. I don't think it's really news.
There seems to be a fair bit of confusion as to how the United States would have jurisdiction in this matter. Without getting too much into specifics, I'll quickly address this.
The Constitution provides Congress with "Power... To regulate Commerce with foreign Nations." International commerce with the US necessarily would involve some activities that occur outside of the US. But since the people engaging in those activities are engaged in commerce with us, they fall under the scope of what Congress can regulate. It's not necessary for them to physically be in the US at the time, for if it were, that wouldn't be international commerce; it would be wholly domestic.
In this case, the person apparently set up a server in the UK and used it to conduct business with people in the US. Furthermore, in doing so, he apparently violated US laws which prohibit people from engaging in this form of commerce where it involves the US, regardless of where the person happens to be while doing it.
The same sort of thing occurs regularly within the US. For example, if a person in Maine has a website which is part of a business, buying or selling something (as opposed to being merely informational), then they are engaging in interstate commerce nationwide. An Alaskan user who buys something from their site has engaged in commerce with them, and now the person in Maine is subject to Alaskan law. This is the price of doing business with people across borders in our legal system: the differing laws on both sides of the border apply, because the transaction as a whole is occuring in both, not just in one or the other.
The actual situation is a bit more complex than this, but this is the gist of it.
If the person who was arrested doesn't wish to get in more trouble in the future, then he's going to either need to comply with US law, or stop doing business that crosses the US border. Or he can try to avoid going to the US or having assets in the US so that he simply stays outside of our reach, despite violating our laws. (N.b. that airspace counts: there are plenty of instances of people flying on planes, and getting served while crossing the airspace of a particular jurisdiction, by someone that followed them on the plane and waited for the right moment. Landing in that jurisdiction isn't required.)
In any case, this isn't much of an example of our stretching ourselves. If you want to see that, I'd suggest looking at the Alien Tort Claims Act. Personally, I don't have a problem with that, or with our general approach to this.
To those who would argue that repressive countries such as China or Saudi Arabia could try the same thing for basically innocuous things like pointing out how repressive they are (as opposed to something arguably more serious, such as illegally running gambling operations), let's remember that they are repressive countries and thus no one should ever want to go there until they clean up their act. As many idiotic and downright evil things as the US has been doing lately (or historically), we're not quite that bad, and I hope we're soon to get significantly better.
Oh, I knew you were thinking of 1008. But it's not an exception.
Exceptions generally read like this: "Notwithstanding the provisions of section 106, the following are not infringements of copyright...."
But 1008 doesn't say that the actions it covers are not infringements of copyright. It says "[n]o action may be brought under this title" which is a different thing. Acts covered under 1008 are infringements, but the are not infringements for which you can be sued. The main outcome of this is that copies made pursuant to 1008, and which don't also fall under an actual exception, are not lawfully made copies. The First Sale exception at 109 says that it only applies to "a particular copy or phonorecord lawfully made under this title," meaning that you can't rely on that to distribute 1008 copies. Fair Use is also probably not available for distributing 1008 copies, since none of the four factors would be on your side.
This is very clever and subtle wording, which I understand came from RIAA, as the original language in Congress would've been a normal exception.
I'd be surprised if there was even a single infringment suit ever filed against any consumer for noncommercial home recordingg with ordinary audio cassettes. I don't see it being any more of a real practical threat for consumers using DAT or other AHRA covered devices.
I agree, but we're stuck with it at the present time anyhow.
home recording is clearly Fair Use and a "copyright exemption" "granting" something that is already Fair use is entirely redundant and worthless.
Well, there's your problem. It wasn't clearly fair use. In fact, since no use is categorically fair, it was unlikely to always be. In some instances it might be fair, and in others it might not be. It would depend on the circumstances around every instance of copying. Someone who made a copy of a song to avoid buying one would likely not be engaging in a fair use, while someone who merely made a mix tape of songs they had lawfully made copies of already likely would be.
An exception would be quite valuable, not just in covering people who were not engaged in fair use, but also in providing a clear exception so that they don't have to resort to fair use, which is never easy to use for protection.
The AHRA is pretty bad for a number of reasons, and doesn't actually include any exceptions, but exceptions along the lines of what AHRA is generally thought to include aren't that bad.
Oh, and said politicians for hire are actively trying to make copyright infrigment a crime worthy of prison time.
No they aren't. Why would they? Copyright infringement has been a federal crime since the late 19th century. It's a felony and can carry as much as a ten year term. The relevant statutes are 17 USC 506 and 18 USC 2319.
Fair Use is not a judicially created doctrine - it's statutory, and therefore cannot really be widened beyond the scope provided for in the text.
Try again. Fair Use was created by the courts in the mid-19th century, and was not recognized in the statutes at all until the 1976 Act (c.f. First Sale, which was created by the courts but codified immediatedly in the 1909 Act). Even under the 1976 Act, it still hasn't been codified per se. Congress has merely said that Fair Use is an exception (though it's really an affirmative defense), and requires that certain factors be considered, though they're not determinative or exclusive. The courts have often pointed out that section 107 is merely Congressional support for the still vital judicial doctrine, and means little to nothing on its own.
That said, Fair Use is as broad as copyright is. Any use that is otherwise infringing can be a fair one, or not, depending on the circumstances. Fair use precedents tend to involve the weighing of various factors. The facts are still what matters, though, and they change in every case.
Only recently. They had a one-party country for decades, and there's still a lot of areas where they could stand improvement to their government, civil liberties, etc. Still, Japan is a hell of a lot better than where they were back in the 30's. But it took so long, and had such a different starting position, that it doesn't lend support to the idea of any of the crap we've been doing in the Middle East.
Napster neither hosted nor distributed a single copyrighted file during its existenceStating that Napster "could have" exerted control over such content is irrelevant.
They did have the ability to do so. In fact, they had the ready ability to; they could have banned users, and blocked files, but they chose not do so. It wouldn't have been terribly effective IMO, but it wasn't all that difficult. In the end, it cost them.
Xor an mp3 with a webpage and it has no definable form as copyrighted. By the same token, if Person A's file from Limewire and Person B's file from iTMS are bitwise identical, it doesn't wash with me that the source somehow makes them "different" or makes one OK to play while the other is forbidden.
Well, that's nevertheless how it is. It's sort of like how morphine is used in a few medicinal applications. A gram of morphine might be chemically uniform, regardless of who you get it from, but it's legal to get it with a prescription from your doctor (under the appropriate circumstances) and not legal to get it from a drug dealer. I think you missed the point of the essay. The law is interested in many aspects of the transaction, not merely the specific bits at issue.
That means time for a change in the law to reflect reality, not time for a change in reality to reflect the law.
I agree. I'm always pushing for sensible copyright reform, you know.
As to Napster, I'm still not entirely sure how they did break the law
I'll show you:
Plaintiffs claim Napster users are engaged in the wholesale reproduction and distribution of copyrighted works, all constituting direct infringement. Secondary liability for copyright infringement does not exist in the absence of direct infringement by a third party. It follows that Napster does not facilitate infringement of the copyright laws in the absence of direct infringement by its users....
We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holders' exclusive rights: the rights of reproduction, 106(1); and distribution, 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights. Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights....
Accordingly, we next address whether Napster is secondarily liable for the direct infringement under two doctrines of copyright law: contributory copyright infringement and vicarious copyright infringement....
Traditionally, "one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a 'contributory' infringer." Put differently, liability exists if the defendant engages in "personal conduct that encourages or assists the infringement."...
Contributory liability requires that the secondary infringer "know or have reason to know" of direct infringement. The district court found that Napster had both actual and constructive knowledge that its users exchanged copyrighted music. The district court also concluded that the law does not require knowledge of "specific acts of infringement" and rejected Napster's contention that because the company cannot distinguish infringing from noninfringing files, it does not "know" of the direct infringement. It is apparent from the record that Napster has knowledge, both actual and constructive, The district court found actual knowledge because: (1) a document authored by Napster co-founder Sean Parker mentioned "the need to remain ignorant of users' real names and IP addresses 'since they are exchanging pirated music'"; and (2) the Recording Industry Association of America ("RIAA") informed Napster of more than 12,000 infringing files, some of which are still available. The district court found constructive knowledge because: (a) Napster executives have recording
Yes, US copyright law specifically grants fair use rights.That the DMCA restricts and contradicts the fair use law. It doesn't.
Well, it technically doesn't, but it effectively does.
Fair use is only a limitation on copyright. Anticircumvention statutes are not part of copyright. As a result, fair use has no effect on anticircumvention. So, while it might not be copyright infringement to engage in a fair use of a work, if you have to circumvent a TPM applied to that work, you're nevertheless engaged in circumvention.
wouldn't it be illegal to play a CD using any device with any buffering capacity, ever, even if the CD were legally purchased?
No. The fair use analysis is different under those circumstances, and there's an implied license argument that's pretty strong as well. But neither of these are likely to work with unlawfully made copies.
And if such buffering is legal, why would it make a difference whether you got the file from iTunes or Limewire as to whether a resident copy in RAM is alright?
Well, fair use is totally dependant on the circumstances involved. If you're using a copy that originates from Limewire, then that's very bad for your fair use argument since one factor is the effect of the use on the actual value or potential market for the work. Whereas, if it's from iTMS (and you're the one who paid for it), then even if the implied license argument wouldn't work for some odd reason, you're still not trying to avoid paying for a legitimately made copy.
It really seemed the court was biased against Napster and wanted 'em shut down
Well, duh. In fairness, the 9th Cir. was not biased against Napster, but they did perceive Napster to have very unclean hands. That being the case, there's nothing unfair about the court not being lenient to Napster where it has an option to be. And that -- and the fact that Napster really was flagrantly breaking the law for the most part -- is what happened.
In any case, that Napster didn't break every law it came across doesn't mean much. A mugger who doesn't jaywalk isn't going to get off lightly because he waits for the walk signal at the intersection.
Re:If I am the copyright owner
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30 Days of DRM
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I say to fix the copyright problem, disallow the transfer of copyright except to the public domain.
Honestly I fail to see how that would help. Transfers would just be replaced with exclusive licenses, and nothing would really change. In fact, I think it'd make things more annoying in that transactions would be somewhat more complicated for no good reason.
Frankly, there's no single magic answer. Good copyright reform is going to require us to make sweeping changes throughout copyright. And because it accomplishes basically nothing, I doubt that your suggestion will be on the agenda.
Eh? Since when is the recipient of an unauthorized copy guilty of copyright infringement? I though it was just the provider of the unauthorized copy.
Well, remember that a copy is defined for copyright purposes as a tangible object. Mere data coming across the wire isn't a copy. But the downloaded information resident in RAM or a hard drive is. So the downloader is in fact making a copy, not receiving one. Making copies is infringement under 17 USC 106(1). The person on the other end, meanwhile, is liable for distribution, which is infringement under 17 USC 106(3). They are different kinds of infringement, but they're both unlawful and both available for the same remedies.
The Napster case (to name but one example) dealt with this, since it was necessary to find that Napster users were infringing when they uploaded or downloaded as a prerequisite to finding that Napster was unlawfully helping users infringe and could be on the hook for that.
You are right, though, in that if someone just gives you an unlawfully made copy physically, without your making it in some fashion, that possession isn't infringing. But that basically never happens when we're talking about downloading.
Yes, but I asked for citations of where somebody was sued by the RIAA (though I'd be just as happy with a suit from a member or a similar organization) for downloading and not uploading.You must be looking at different furor than I am. From what I've read, the reason it didn't go to a jury for damages determination is that that the suers were only asking for the minimums, so a jury wouldn't change anything except maybe make the award go even higher than what was asked for.
No, a jury couldn't make it go higher. But they could nullify the suit altogether, which is probably what the defendant would have liked, and would have had a shot at (being more sympathetic than the plaintiff, after all).
but maybe they weren't suing her for those songs
That's correct, they weren't.
It's trivial to find downloaders. You put something up for download, and log who downloads it. Of course, if you put up the actual songs in question, then you're distributing them, which is probably illegal.
Why would it be illegal? After all, the people who would put it up are the ones who hold the copyright. They can put it up if they want to.
But on the whole, they'd rather not compete with themselves, they'd rather not risk an equitable argument if they are distributing their own works, and they would have to put up the real thing in order to have a particularly strong argument against fair use, as decoys would likely get deleted rapidly, lending credence to a sampling argument, whatever that's worth.
On the whole, looking for uploaders is easier -- they advertise themselves -- and more useful to RIAA.
Apparantly the RIAA has been skipping this last step, probably just because the burden of proof isn't very high in a civil case. That, and it takes some time.
No, it's essential to their case. If they're failing to verify that the work is there they're either engaging in sanctionable offenses if they've really filed suit (as opposed to their discovery suits, which are a different matter), or are just being unforgivably lazy if there is no suit.
You made a typo
Wouldn't be the forst time.
Then you can make arguments like `and it's likely that each of those songs will be downloaded by 1000x people, so this person costs us $1/song x 300 songs x 1000 people or $300,000.
Except that that's not how money damages for copyright infringement are calculated. In most, if not all, of these cases, they're using the statutory damages provision at 17 USC 504(c). That says that for each work infringed (regardless of the number of infringements), they can sue for anywhere between $750 to $30,000. And if they can show willfulness, the maximum value goes up to $150,000 per work. That's where these big numbers come from: Congress set the ceiling very high in the statute and most infringers don't just infringe on one or two works, but tens, hundreds, or even thousands. Share 10 songs and get caught and you'd be looking at as much as $150,000 x 10. Doesn't matter if only one person downloaded them or a million people did.
Given that this applies for both uploading and downloading, and that these defendants don't have much money anyway, and obviously aren't a profit center for these industries, I'd say that their preference for uploaders has nothing to do with either the money they could get or how easily they can win.
To be more clear, what I'm saying is that many people, including myself, would like to see normal individuals, who act noncommercially, protected. So that if you, personally, used a P2P network, you would not have infringed. But if you sold copies, or were a business of some kind, you'd still have to watch your step, since you would not be protected from copyright.
Basically a broad exception to copyright that benefits ordinary people.
No, the argument goes, it only appears to be sold in a shop. In fact, a proponent of this theory would say, it is being licened, and the shop is merely a means of distribution, not really a participant in the licensing transaction.
Again, no not at all, since the seller is not the same as the one making a contract about use.
And yet, many courts have found that the seller is in fact the manufacturer. The store is an intermediary, but not really part of the transaction, however much it might appear to be to you. Again, I'd suggest reading the ProCD case, which is a key precedent and widely followed.
But you don't need the EULA to use the software at all due to the fact that one have the 117.
And the pro-EULA argument is that you don't own it. When you paid money to the store and walked out with the software you were at step one of agreeing to the EULA. When you take the software home and click on the 'I agree' button, you are at the second and final step of agreeing to the EULA. If you stop, and don't agree, then you need to return the software and get your money back. The reason being, since the cash register portion of the overall transaction isn't the full transaction, you don't own anything when you walk out of the store. And when you agree to the EULA, you still don't own anything; you've just been given permission to use the software that remains owned by the manufacturer (hence it being styled a 'license').
You're basically adopting the theory that the cash register transaction is wholly independent of the EULA transaction. The court in the ProCD case said that they are just two halves of the same, single transaction. Other courts have gone your way, but not so many.
And that is according to the consumer sale law in most every country not permited.
I couldn't give a rat's ass about most every country. I'm interested in what happens in the US. I trust that other countries will do what's best for them, just as we'll do what's best for us.
In the US, sales of goods fall under state law, which is each state's version of the UCC. Basically, whether the ProCD argument is right or the Klocek argument (the one you're making) is right, hinges on how you read a couple of very specific provisions of the UCC in light of the facts regarding how EULAs are said to function. (Except in VA and MD, which rather stupidly enacted UCITA, which is very pro-EULA)
weather there being a license of some sort means one can't own something, which is not true. As you yourself gave an example of, you can own something, yet agree to restrictions on use or other conditions as part of the purchase (or even as not part of the purchase) and that does not need to change the ownership
Of course, if scenario 3 applies, you own nothing. If scenario 2 applies, you own the copy, but have agreed to a contract which overrides 117 and which is likely enforceable in that regard. In either event, 117 is irrelevant. The only way that 117 will work is if you own something and if there is no contract that in any way overrides it which is enforceable against you.
In these cases, somebody wasn't sued for downloading. Napster was sued for facilitating downloading (and uploading, since you can't have one without the other),
Yes, but that is irrelevant. The lawsuit against Napster was for contributory infringement and vicarious infringement. These are both forms of indirect infringement. In order to prove that they occurred, you need to prove that there was an underlying direct infringement. This is because helping someone infringe isn't against the law if the someone didn't infringe.
So the RIAA still had to prove that Napster users were engaging in direct infringement in order to have any case against Napster for helping them do it. They alleged two distinct and independent kinds of infringement: reproduction, in the form of downloading, and distribution, in the form of uploading. As I've pointed out elsewhere, someone who does both can be sued for both, but you have to prove each kind of infringement independently, just as you would have to if you were suing that person for only one or the other. It's like if you want to prosecute someone for raping and murdering a victim, you have to prove that the defendant raped the victim, which does not prove that the defendant murdered them, and you have to prove that the defendant murdered the victim, which does not prove that the defendant raped them. The burden of proving a specific act is no different if the defendant did only one of those things, than if he did both.
In any case, RIAA made their prima facie case: that the Napster users who downloaded were infringing, and that the Napster users who uploaded were infringing. Whether the users are one and the same isn't relevant to what RIAA had to prove. It doesn't change anything.
Napster brought up various defenses for what its users did: the AHRA, fair use, etc. and failed on all of them. Since RIAA successfully proved that Napster users infringed by downloading (as well as, independently, by uploading), they could proceed with the case against Napster per se.
As a result, the Napster case is a strong precedent. Just because you, or other/.'ers are unclear as to how doesn't change this.
LoopNet was sued for actually having the music on their servers for others to download, not for downloading it themselves.
This is somewhat similar to Napster, although here LoopNet was shifting the blame to users, and the court agreed that users, by virtue of being in a different position than an ISP, would infringe if they downloaded works. An ISP can pass works through itself without being considered a downloader, though, due mainly to issues of timing and material possession of unlawfully made copies.
finds lots of people arging that the judgement was wrong
Meh. Most of the furor over this was the court denying the defendant a jury trial since it felt that there were no disputed facts or damages. All that was left were matters of law, and those are left to the judge to decide.
The copyright portion of the case seems to be in a lot less dispute, AFAIK. Remember that the defendant downloaded music which she didn't own a copy of, claimed it was only for purposes of listening to it to decide whether to buy it, didn't buy it, and kept the copies permanently. It doesn't run contrary to Sony because it's very different from Sony (which never said that librarying tv was lawful, but that timeshifting it was; there is a difference).
presumably because they have a much stronger case here.
No, that's not why. It's because uploaders are easier to find than downloaders. And it's because RIAA, MPAA, et al, have made a strategic decision to prefer to sue downloaders rather than uploaders, due to the network effects. If you shut down an uploader, then anyone leeching off of that uploader will have to go elsewhere. Since there is a finite number of uploaders, and of bandwidth, this will mean that downloading will become harder, and maybe some downloaders will quit, since it's more trouble
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No, it's correct. It's your example that is in error. If you buy a book that was made and/or distributed unlawfully, you haven't broken the law. Buying an unlawfully made copy isn't infringement. Making a copy, as you necessarily must when you download, would be infringement, OTOH.
If that doesn't meet the textbook definition of extortion, I don't know what would.
It doesn't, and I guess that means you don't know what would.
It's a settlement. A lawsuit doesn't actually have to have been filed, or be on the eve of being filed, in order to settle. A settlement is merely an agreement between parties to waive legal rights against one in exchange for something of value from the other. It can be anything, from money, to a promise to do, or not do, some particular action, or whatever. RIAA has agreed not to sue eDonkey over this, and now they are absolutely precluded from doing so. Of course, it doesn't stop anyone else, and it only counts as to the subject of the agreement, not other things eDonkey might be liable to them for.
The courts love it when parties settle. And there's no timing issue: you can sell from when the right to sue first exists, all the way to just before the case finally concludes and the right is laid to rest.
Extortion would be if one party wasn't waiving a right to sue, but instead agreed not to do some illegal thing, e.g. burn down a warehouse. And of course, it's not even binding, really.
Almost every single tab out there is another person's interpretation of another artist's work and usually not a direct copy of the tablature from an official tablature book.
A copy can be a copy without being an exact copy. For example, if I copy a book by hand, and I make some typos, or accidently skip over a page here or there, but the book is substantially there, it's a copy. Perfection isn't required. I suppose that in some cases, a tablature could be a derivative work instead. Still, copyright covers both the making of copies and the making of derivatives, so I don't see how it matters.
Aren't interpretive works covered under fair use, especially when it's not being sold for money, and is used for purely educational purposes?
Fair use is a case-by-case affair. There's no uses that are always fair or not. So you need to go through the actual four-factor analysis. Offhand I'd say that you get half of the first factor, as it's not educational, but it is probably noncommercial (so long as there's really nothing commercial, not even ads on the web page). You're being overbroad with regards to educational uses. If I burn a copy of Star Wars and give it to you, I suppose I've 'educated' you as to the contents of the film, but it's obviously not really educational. It needn't be formal, at a school, but it can't be a thin excuse with no substance either. You lose the second and third factors, as the work is creative, and you're using, if not all of it, a very substantial, important part of it. And the fourth factor is a loss because you're harming the actual or potential market for official tablatures, regardless of whether you're giving them away for free or not. You're making a substitute for the copyright holder's version (or possible version).
I'd say that it is not a fair use, but of course, that'll depend on the exact facts of each case.
Even in a civil case, the burden remains on the plaintiff to make his prima facie case. So it works the same, even though civil cases don't deal with concepts like guilt or innocence.
There is a problem with the scrollbars. OSX scrollbars can normally either have both arrows clustered at the bottom right, or one arrow on either end. The preference to change that is in the Appearance control panel.
But there is a third option, which you generally have to set via the terminal, for double arrows at both ends. This has worked in everything AFAIK until now. iTunes 7 appears to have the arrows at the bottom right by default, and only changes to the arrows at each end if that is set. It doesn't honor the double arrows at both ends setting, instead defaulting back to double arrows only in the lower right. And since it apparently doesn't use the standard arrows, like pretty much everything else, this is relevant.
This is pretty minor, but annoying, especially since if I couldn't have double arrows at both ends, I'd have single arrows at both ends, but since I won't change the global setting (since everything else still works with it), iTunes uses the double at one end arrows, which I hate.
No. It's perfectly good evidence.
If it's easy to fake, then you should present that fact. Then the jury decides whether they believe it or whether they think it's fake, and based upon that, whether they think you did what you're accused of. That's their job. They could go either way.
If you want to exclude evidence, you need a different, better, reason than that it might not be true. Courts determine truth based on evidence.
You can read the Federal Rules of Evidence here. You'd probably want to start with R. 401. The hearsay rules starting at R. 801 would also be relevant.
Statutory damages are calculated on a per-work basis.
So if you make one million copies of a single book, then it only counts once for the purpose of calculating statutory damages. But if you make one copy each of two different books, then that counts twice.
You mean the Witch-king of Angmar, not Sauron.
Well, more accurately, the idea is to 1) avoid UPL issues, and 2) avoid the formation of an attorney client relationship, as well as matters of privilege or conflict.
Certainly, though, if someone here wants actual legal advice, they should hire a lawyer licensed in their own jurisdiction.
All that said, I think the earlier post was a joke, in that if what I said isn't legal advice, it must be the opposite, which is illegal advice.
Before filing the suit, RIAA must have gathered some amount of evidence which led them to believe that the defendant was breaking the law to begin with. However, this could be very little evidence, far less than would actually be needed to prove it in court. This is because once you file a suit, you then get to engage in discovery so as to get sufficient evidence. All you need in order to file, pursuant to Rule 11 is "to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances ... the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery."
Having filed, they're entitled to gather evidence more easily, by getting testimony, physical evidence, etc. They generally have a right to gather it for the suit, rather than merely asking for it. Federal civil trials in the US are big on discovery. The idea is that there should be no surprises in court; both sides will have ample opportunity to determine precisely what happened. Hopefully, there won't even be a dispute over the facts, making the trial go faster, and ideally it'll get the parties to settle or the case to get dropped, since court time is a valuable commodity.
In any event, what has happened here is that the defendant has filed for summary judgment to dismiss the case. In a trial, there are questions of fact (e.g. did A stab B?) and questions of law (e.g. is it against the law for A to stab B?). In a summary judgment motion, the moving party is saying that there are no questions of fact which will have any bearing on the case, or some portion thereof. Therefore, the case (or the portion of the case for which summary judgment is sought) can be decided by the judge immediately, based purely on the law and the facts for which there is no question. (e.g. A and B agree that A stabbed B, so accepting that, the only issue is whether it was against the law, not whether it happened)
However, often both sides will dispute whether there are material factual questions remaining or not, that is, whether there are disputed facts where a reasonable jury could go either way, and which are important to the case. For instance, if A says that the knife was a toy knife, and B disagrees, this is likely material. But a dispute over the color of the knife likely is not.
Here, defendant is asking for summary judgment because he says RIAA sued the wrong person, and anyway, he didn't infringe. RIAA is saying that they need to gather more evidence so that they can show it to the judge, show that there are material questions of fact which are in dispute, and that they should go to a jury. In order to do this, they need to engage in discovery to find out some of these facts, since they weren't required to have them prior to filing the suit. N.b. that all RIAA has to do is show that there are still issues that need to go to a jury -- they do not need to show that the jury would find in their favor, or that they'd win the eventual case. Even highly disreputable and unbelievable evidence is sufficient to defeat the motion if a reasonable jury might believe it. In summary judgment matters, the court will look at all the facts in the light most favorable to the non-moving party, who is in this case, RIAA. This is because it's the moving party that wants no trial, and so should be required to prove it. The moving party isn't allowed to use summary judgment as a railroad to get the case dismissed before crucial evidence can be gathered, as that would run contrary to the rules allowing for discovery and setting the low threshold for filing.
Honestly, this is all fairly ordinary stuff. I don't think it's really news.
There seems to be a fair bit of confusion as to how the United States would have jurisdiction in this matter. Without getting too much into specifics, I'll quickly address this.
... To regulate Commerce with foreign Nations." International commerce with the US necessarily would involve some activities that occur outside of the US. But since the people engaging in those activities are engaged in commerce with us, they fall under the scope of what Congress can regulate. It's not necessary for them to physically be in the US at the time, for if it were, that wouldn't be international commerce; it would be wholly domestic.
The Constitution provides Congress with "Power
In this case, the person apparently set up a server in the UK and used it to conduct business with people in the US. Furthermore, in doing so, he apparently violated US laws which prohibit people from engaging in this form of commerce where it involves the US, regardless of where the person happens to be while doing it.
The same sort of thing occurs regularly within the US. For example, if a person in Maine has a website which is part of a business, buying or selling something (as opposed to being merely informational), then they are engaging in interstate commerce nationwide. An Alaskan user who buys something from their site has engaged in commerce with them, and now the person in Maine is subject to Alaskan law. This is the price of doing business with people across borders in our legal system: the differing laws on both sides of the border apply, because the transaction as a whole is occuring in both, not just in one or the other.
The actual situation is a bit more complex than this, but this is the gist of it.
If the person who was arrested doesn't wish to get in more trouble in the future, then he's going to either need to comply with US law, or stop doing business that crosses the US border. Or he can try to avoid going to the US or having assets in the US so that he simply stays outside of our reach, despite violating our laws. (N.b. that airspace counts: there are plenty of instances of people flying on planes, and getting served while crossing the airspace of a particular jurisdiction, by someone that followed them on the plane and waited for the right moment. Landing in that jurisdiction isn't required.)
In any case, this isn't much of an example of our stretching ourselves. If you want to see that, I'd suggest looking at the Alien Tort Claims Act. Personally, I don't have a problem with that, or with our general approach to this.
To those who would argue that repressive countries such as China or Saudi Arabia could try the same thing for basically innocuous things like pointing out how repressive they are (as opposed to something arguably more serious, such as illegally running gambling operations), let's remember that they are repressive countries and thus no one should ever want to go there until they clean up their act. As many idiotic and downright evil things as the US has been doing lately (or historically), we're not quite that bad, and I hope we're soon to get significantly better.
Oh, I knew you were thinking of 1008. But it's not an exception.
Exceptions generally read like this: "Notwithstanding the provisions of section 106, the following are not infringements of copyright...."
But 1008 doesn't say that the actions it covers are not infringements of copyright. It says "[n]o action may be brought under this title" which is a different thing. Acts covered under 1008 are infringements, but the are not infringements for which you can be sued. The main outcome of this is that copies made pursuant to 1008, and which don't also fall under an actual exception, are not lawfully made copies. The First Sale exception at 109 says that it only applies to "a particular copy or phonorecord lawfully made under this title," meaning that you can't rely on that to distribute 1008 copies. Fair Use is also probably not available for distributing 1008 copies, since none of the four factors would be on your side.
This is very clever and subtle wording, which I understand came from RIAA, as the original language in Congress would've been a normal exception.
I'd be surprised if there was even a single infringment suit ever filed against any consumer for noncommercial home recordingg with ordinary audio cassettes. I don't see it being any more of a real practical threat for consumers using DAT or other AHRA covered devices.
I agree, but we're stuck with it at the present time anyhow.
home recording is clearly Fair Use and a "copyright exemption" "granting" something that is already Fair use is entirely redundant and worthless.
Well, there's your problem. It wasn't clearly fair use. In fact, since no use is categorically fair, it was unlikely to always be. In some instances it might be fair, and in others it might not be. It would depend on the circumstances around every instance of copying. Someone who made a copy of a song to avoid buying one would likely not be engaging in a fair use, while someone who merely made a mix tape of songs they had lawfully made copies of already likely would be.
An exception would be quite valuable, not just in covering people who were not engaged in fair use, but also in providing a clear exception so that they don't have to resort to fair use, which is never easy to use for protection.
The AHRA is pretty bad for a number of reasons, and doesn't actually include any exceptions, but exceptions along the lines of what AHRA is generally thought to include aren't that bad.
Oh, and said politicians for hire are actively trying to make copyright infrigment a crime worthy of prison time.
No they aren't. Why would they? Copyright infringement has been a federal crime since the late 19th century. It's a felony and can carry as much as a ten year term. The relevant statutes are 17 USC 506 and 18 USC 2319.
Where have you been?
Fair Use is not a judicially created doctrine - it's statutory, and therefore cannot really be widened beyond the scope provided for in the text.
Try again. Fair Use was created by the courts in the mid-19th century, and was not recognized in the statutes at all until the 1976 Act (c.f. First Sale, which was created by the courts but codified immediatedly in the 1909 Act). Even under the 1976 Act, it still hasn't been codified per se. Congress has merely said that Fair Use is an exception (though it's really an affirmative defense), and requires that certain factors be considered, though they're not determinative or exclusive. The courts have often pointed out that section 107 is merely Congressional support for the still vital judicial doctrine, and means little to nothing on its own.
That said, Fair Use is as broad as copyright is. Any use that is otherwise infringing can be a fair one, or not, depending on the circumstances. Fair use precedents tend to involve the weighing of various factors. The facts are still what matters, though, and they change in every case.
Only recently. They had a one-party country for decades, and there's still a lot of areas where they could stand improvement to their government, civil liberties, etc. Still, Japan is a hell of a lot better than where they were back in the 30's. But it took so long, and had such a different starting position, that it doesn't lend support to the idea of any of the crap we've been doing in the Middle East.
They did have the ability to do so. In fact, they had the ready ability to; they could have banned users, and blocked files, but they chose not do so. It wouldn't have been terribly effective IMO, but it wasn't all that difficult. In the end, it cost them.
Xor an mp3 with a webpage and it has no definable form as copyrighted. By the same token, if Person A's file from Limewire and Person B's file from iTMS are bitwise identical, it doesn't wash with me that the source somehow makes them "different" or makes one OK to play while the other is forbidden.
Well, that's nevertheless how it is. It's sort of like how morphine is used in a few medicinal applications. A gram of morphine might be chemically uniform, regardless of who you get it from, but it's legal to get it with a prescription from your doctor (under the appropriate circumstances) and not legal to get it from a drug dealer. I think you missed the point of the essay. The law is interested in many aspects of the transaction, not merely the specific bits at issue.
That means time for a change in the law to reflect reality, not time for a change in reality to reflect the law.
I agree. I'm always pushing for sensible copyright reform, you know.
As to Napster, I'm still not entirely sure how they did break the law
I'll show you:
Yes, US copyright law specifically grants fair use rights.That the DMCA restricts and contradicts the fair use law. It doesn't.
Well, it technically doesn't, but it effectively does.
Fair use is only a limitation on copyright. Anticircumvention statutes are not part of copyright. As a result, fair use has no effect on anticircumvention. So, while it might not be copyright infringement to engage in a fair use of a work, if you have to circumvent a TPM applied to that work, you're nevertheless engaged in circumvention.
Am I "infringing" now?
Yes, given the current law.
wouldn't it be illegal to play a CD using any device with any buffering capacity, ever, even if the CD were legally purchased?
No. The fair use analysis is different under those circumstances, and there's an implied license argument that's pretty strong as well. But neither of these are likely to work with unlawfully made copies.
And if such buffering is legal, why would it make a difference whether you got the file from iTunes or Limewire as to whether a resident copy in RAM is alright?
Well, fair use is totally dependant on the circumstances involved. If you're using a copy that originates from Limewire, then that's very bad for your fair use argument since one factor is the effect of the use on the actual value or potential market for the work. Whereas, if it's from iTMS (and you're the one who paid for it), then even if the implied license argument wouldn't work for some odd reason, you're still not trying to avoid paying for a legitimately made copy.
At this point you might be interested in reading the very good essay What Colour Are Your Bits?.
It really seemed the court was biased against Napster and wanted 'em shut down
Well, duh. In fairness, the 9th Cir. was not biased against Napster, but they did perceive Napster to have very unclean hands. That being the case, there's nothing unfair about the court not being lenient to Napster where it has an option to be. And that -- and the fact that Napster really was flagrantly breaking the law for the most part -- is what happened.
In any case, that Napster didn't break every law it came across doesn't mean much. A mugger who doesn't jaywalk isn't going to get off lightly because he waits for the walk signal at the intersection.
I say to fix the copyright problem, disallow the transfer of copyright except to the public domain.
Honestly I fail to see how that would help. Transfers would just be replaced with exclusive licenses, and nothing would really change. In fact, I think it'd make things more annoying in that transactions would be somewhat more complicated for no good reason.
Frankly, there's no single magic answer. Good copyright reform is going to require us to make sweeping changes throughout copyright. And because it accomplishes basically nothing, I doubt that your suggestion will be on the agenda.
Eh? Since when is the recipient of an unauthorized copy guilty of copyright infringement? I though it was just the provider of the unauthorized copy.
Well, remember that a copy is defined for copyright purposes as a tangible object. Mere data coming across the wire isn't a copy. But the downloaded information resident in RAM or a hard drive is. So the downloader is in fact making a copy, not receiving one. Making copies is infringement under 17 USC 106(1). The person on the other end, meanwhile, is liable for distribution, which is infringement under 17 USC 106(3). They are different kinds of infringement, but they're both unlawful and both available for the same remedies.
The Napster case (to name but one example) dealt with this, since it was necessary to find that Napster users were infringing when they uploaded or downloaded as a prerequisite to finding that Napster was unlawfully helping users infringe and could be on the hook for that.
You are right, though, in that if someone just gives you an unlawfully made copy physically, without your making it in some fashion, that possession isn't infringing. But that basically never happens when we're talking about downloading.
Yes, but I asked for citations of where somebody was sued by the RIAA (though I'd be just as happy with a suit from a member or a similar organization) for downloading and not uploading.You must be looking at different furor than I am. From what I've read, the reason it didn't go to a jury for damages determination is that that the suers were only asking for the minimums, so a jury wouldn't change anything except maybe make the award go even higher than what was asked for.
No, a jury couldn't make it go higher. But they could nullify the suit altogether, which is probably what the defendant would have liked, and would have had a shot at (being more sympathetic than the plaintiff, after all).
but maybe they weren't suing her for those songs
That's correct, they weren't.
It's trivial to find downloaders. You put something up for download, and log who downloads it. Of course, if you put up the actual songs in question, then you're distributing them, which is probably illegal.
Why would it be illegal? After all, the people who would put it up are the ones who hold the copyright. They can put it up if they want to.
But on the whole, they'd rather not compete with themselves, they'd rather not risk an equitable argument if they are distributing their own works, and they would have to put up the real thing in order to have a particularly strong argument against fair use, as decoys would likely get deleted rapidly, lending credence to a sampling argument, whatever that's worth.
On the whole, looking for uploaders is easier -- they advertise themselves -- and more useful to RIAA.
Apparantly the RIAA has been skipping this last step, probably just because the burden of proof isn't very high in a civil case. That, and it takes some time.
No, it's essential to their case. If they're failing to verify that the work is there they're either engaging in sanctionable offenses if they've really filed suit (as opposed to their discovery suits, which are a different matter), or are just being unforgivably lazy if there is no suit.
You made a typo
Wouldn't be the forst time.
Then you can make arguments like `and it's likely that each of those songs will be downloaded by 1000x people, so this person costs us $1/song x 300 songs x 1000 people or $300,000.
Except that that's not how money damages for copyright infringement are calculated. In most, if not all, of these cases, they're using the statutory damages provision at 17 USC 504(c). That says that for each work infringed (regardless of the number of infringements), they can sue for anywhere between $750 to $30,000. And if they can show willfulness, the maximum value goes up to $150,000 per work. That's where these big numbers come from: Congress set the ceiling very high in the statute and most infringers don't just infringe on one or two works, but tens, hundreds, or even thousands. Share 10 songs and get caught and you'd be looking at as much as $150,000 x 10. Doesn't matter if only one person downloaded them or a million people did.
Given that this applies for both uploading and downloading, and that these defendants don't have much money anyway, and obviously aren't a profit center for these industries, I'd say that their preference for uploaders has nothing to do with either the money they could get or how easily they can win.
To be more clear, what I'm saying is that many people, including myself, would like to see normal individuals, who act noncommercially, protected. So that if you, personally, used a P2P network, you would not have infringed. But if you sold copies, or were a business of some kind, you'd still have to watch your step, since you would not be protected from copyright.
Basically a broad exception to copyright that benefits ordinary people.
No, software is sold in a shop.
No, the argument goes, it only appears to be sold in a shop. In fact, a proponent of this theory would say, it is being licened, and the shop is merely a means of distribution, not really a participant in the licensing transaction.
Again, no not at all, since the seller is not the same as the one making a contract about use.
And yet, many courts have found that the seller is in fact the manufacturer. The store is an intermediary, but not really part of the transaction, however much it might appear to be to you. Again, I'd suggest reading the ProCD case, which is a key precedent and widely followed.
But you don't need the EULA to use the software at all due to the fact that one have the 117.
And the pro-EULA argument is that you don't own it. When you paid money to the store and walked out with the software you were at step one of agreeing to the EULA. When you take the software home and click on the 'I agree' button, you are at the second and final step of agreeing to the EULA. If you stop, and don't agree, then you need to return the software and get your money back. The reason being, since the cash register portion of the overall transaction isn't the full transaction, you don't own anything when you walk out of the store. And when you agree to the EULA, you still don't own anything; you've just been given permission to use the software that remains owned by the manufacturer (hence it being styled a 'license').
You're basically adopting the theory that the cash register transaction is wholly independent of the EULA transaction. The court in the ProCD case said that they are just two halves of the same, single transaction. Other courts have gone your way, but not so many.
And that is according to the consumer sale law in most every country not permited.
I couldn't give a rat's ass about most every country. I'm interested in what happens in the US. I trust that other countries will do what's best for them, just as we'll do what's best for us.
In the US, sales of goods fall under state law, which is each state's version of the UCC. Basically, whether the ProCD argument is right or the Klocek argument (the one you're making) is right, hinges on how you read a couple of very specific provisions of the UCC in light of the facts regarding how EULAs are said to function. (Except in VA and MD, which rather stupidly enacted UCITA, which is very pro-EULA)
weather there being a license of some sort means one can't own something, which is not true. As you yourself gave an example of, you can own something, yet agree to restrictions on use or other conditions as part of the purchase (or even as not part of the purchase) and that does not need to change the ownership
Of course, if scenario 3 applies, you own nothing. If scenario 2 applies, you own the copy, but have agreed to a contract which overrides 117 and which is likely enforceable in that regard. In either event, 117 is irrelevant. The only way that 117 will work is if you own something and if there is no contract that in any way overrides it which is enforceable against you.
In these cases, somebody wasn't sued for downloading. Napster was sued for facilitating downloading (and uploading, since you can't have one without the other),
/.'ers are unclear as to how doesn't change this.
Yes, but that is irrelevant. The lawsuit against Napster was for contributory infringement and vicarious infringement. These are both forms of indirect infringement. In order to prove that they occurred, you need to prove that there was an underlying direct infringement. This is because helping someone infringe isn't against the law if the someone didn't infringe.
So the RIAA still had to prove that Napster users were engaging in direct infringement in order to have any case against Napster for helping them do it. They alleged two distinct and independent kinds of infringement: reproduction, in the form of downloading, and distribution, in the form of uploading. As I've pointed out elsewhere, someone who does both can be sued for both, but you have to prove each kind of infringement independently, just as you would have to if you were suing that person for only one or the other. It's like if you want to prosecute someone for raping and murdering a victim, you have to prove that the defendant raped the victim, which does not prove that the defendant murdered them, and you have to prove that the defendant murdered the victim, which does not prove that the defendant raped them. The burden of proving a specific act is no different if the defendant did only one of those things, than if he did both.
In any case, RIAA made their prima facie case: that the Napster users who downloaded were infringing, and that the Napster users who uploaded were infringing. Whether the users are one and the same isn't relevant to what RIAA had to prove. It doesn't change anything.
Napster brought up various defenses for what its users did: the AHRA, fair use, etc. and failed on all of them. Since RIAA successfully proved that Napster users infringed by downloading (as well as, independently, by uploading), they could proceed with the case against Napster per se.
As a result, the Napster case is a strong precedent. Just because you, or other
LoopNet was sued for actually having the music on their servers for others to download, not for downloading it themselves.
This is somewhat similar to Napster, although here LoopNet was shifting the blame to users, and the court agreed that users, by virtue of being in a different position than an ISP, would infringe if they downloaded works. An ISP can pass works through itself without being considered a downloader, though, due mainly to issues of timing and material possession of unlawfully made copies.
finds lots of people arging that the judgement was wrong
Meh. Most of the furor over this was the court denying the defendant a jury trial since it felt that there were no disputed facts or damages. All that was left were matters of law, and those are left to the judge to decide.
The copyright portion of the case seems to be in a lot less dispute, AFAIK. Remember that the defendant downloaded music which she didn't own a copy of, claimed it was only for purposes of listening to it to decide whether to buy it, didn't buy it, and kept the copies permanently. It doesn't run contrary to Sony because it's very different from Sony (which never said that librarying tv was lawful, but that timeshifting it was; there is a difference).
presumably because they have a much stronger case here.
No, that's not why. It's because uploaders are easier to find than downloaders. And it's because RIAA, MPAA, et al, have made a strategic decision to prefer to sue downloaders rather than uploaders, due to the network effects. If you shut down an uploader, then anyone leeching off of that uploader will have to go elsewhere. Since there is a finite number of uploaders, and of bandwidth, this will mean that downloading will become harder, and maybe some downloaders will quit, since it's more trouble