There already is one: the USPTO. The process, Patent Reexamination.
Reexamination may be initiated by any person willing to petition the office and setting forth any substantial new question of patentability. The Patent office can also begin such a process sua sponte (by its own initiation), as it did with the patents in the RIM and Compton's cases.
Literal copying of entire programs has nothing to do with reinventing a wheel. It is simply wholesale appropriation of expression.
What copyright does is force everyone to reinvent the wheel over and over again to avoid being sued, this slows progress.
Herein lies the beauty of intellectual property law. You are 100% correct that nothing is written or invented without standing "On the Shoulders of ye Giants." (OTSOG). Nothing. Not fundamental pioneering invention, not incremental improvement. Nothing.
For this reason, OTSOG is a fundamental policy that is balanced against other policies, such as the decision of society to provide limited monopolies to promote the progress of science and the useful arts. OTSOG is one of the KEY factors in driving the case law construing the limits of copyright.
This is why copyright does not have the effect you describe. In particular, copyright does not protect ideas, just their expression. Independent coding of an idea, even if it results in a verbatim copy, is not infringement. Scenes a faire, even if it involves wholesale copying of the original, are not protected. Fair use is not protected.
In short, you are correct, if by "reinvent the wheel," you mean a freedom to wholly appropriate the work of another without consent. I am not certain this is a bad thing. But you are entirely wrong if you think that you are not free to use the wheel as often as you like to the extent we are discussing ideas, concepts, algorithms and general coding principles.
a : the act of stealing; specifically : the felonious taking and removing of personal property with intent to deprive the rightful owner of it b : an unlawful taking (as by embezzlement or burglary) of property
You cannot STEAL information because information by design is not physical and cannot be contained.
Yeah, right. And when I hack into your bank to effect a transfer of assets for my own, I have taken nothing physical either. If we are going to get hung up on definitions, let us read ALL of the dictionary definitions:
steal v. 1 . . . b. to appropriate (as another's conception or invention) and us as one's own <
word games neither inform nor resolve the issue. The intangibility of intangible personal property does not preclude the possibility of its theft.
Its debateable if file swapping if morally wrong at all. Some of us believe its a personal freedom, like freedom of speech, and that its not morally wrong but morally right.
Each of us have our own judgments about the morality and immorality of various acts. We don't have to agree about any of your points, however, to be able to mutually function in a society.
You don't need to agree with America's social norms to conform to them -- we don't have laws to make immoral things illegal, moral things immoral or immoral things moral -- we have laws to adjust and govern our conduct in accordance with the will of the majority, tempered by the Constitution.
You needn't agree with the principles for which these laws exist to be subject to them. That is the entire point of democracy. You may vote for representatives to pass or repeal laws you dislike, and are subject to them until you have so succeeded.
"Surely all manner of pr0n video-on-demand services must fall under this (rather large) umbrella"
Surely? Name one -- please identify each element of the claim and the part of the apparatus upon which it reads. Note the prior art distinguished during prosecution (discussed in and listed on front of the patent) and ask yourself how Microsoft avoided those with its claims.
Before defining the umbrella as large, it would be a good idea to actually find out how large it is.
For the most part, consumers don't and should not have a problem with legitimate enforcement of copyrights -- even where they shut down or financially ruin the infringer who might be "just like you and me." Whether or not we may buy into the "infringement as theft" analogy, we understand what is the law, and why it is the law. When someone gets nipped for actually infringing, well, someone got nipped.
It is only in the arena of legislative and judicial overreaching where harm is done to society, where technology advances are retarded, and where the content owners unreasonably attempt to extend their monopoly on distribution of expression into a monopoly on markets in which they have no legitimate interest.
I guess we always needed a luddite caucus. If you can't beat the Unibomber, join 'em, I suppose. Congressmen calling for the stunting of technology -- how quaint.
I suppose they would have opposed the invention of the piano roll, too -- and that victrola, what a threat! The audio tape, the video tape and now the P.C. Ironically, it was these technologies that made the companies that build these Congressmen's campaign warchests.
At the end of the day, the market does a far better job of deciding what technologies the world need than does the Congress. Amazing how supposedly "conservative" congressmen don't think twice about regulating industries they don't understand to protect the interests of businesses they do. Alas, the one being regulated by them is the one driving our economy.
Distinguishing between the technologies and those who exploit them wrongly is the identifying feature of these doofuses. These guys would ban credit cards as forms of lockpicking tools because they can be used to jimmy open some old doors. We already have laws making copyright infringement illegal -- we don't need new ones to make criminals of other people who don't infringe and who make useful, important technology, just because some special interest group doesn't want to be vigilant or change business models to one that can succeed in the twenty-first century..
Luddites unite! Since we are already going to double the debt in the next few years, why not also wreck the economy?
This really isn't too hard a problem. In a p2p transaction, two machines are engaged in a network transaction to effect the copying of a file stored in one machine onto another. In such a case, both parties are engaged in a copyright infringement if the content was unauthorized for this transaction -- in one case, the uploading party has engaged in reproduction or distribution, and in the other, the downloading party has engaged in reproduction. There may be a legitimate question of volition, that is to say that there is non-infringement on one party's part if the transfer was accidental or negligent (such as where a receiving party hacks to get the file), but otherwise both parties are probably infringers.
It gets more interesting when no copies are stored, but for the most part, I seriously doubt that judges would give the kind of argument my colleague Fastolfe sees to be so intuitive much serious consideration. Not that I couldn't advocate the position, but I wouldn't give much hope.
I'd be willing to wager the result would be pretty much the same in most modern industrial nations.
The only thing the user can see, interact with or otherwise use (copy!) is the version on disk.
This isn't much of an argument against non-infringement. Assuming that all the user does is to reproduce the RAM image onto a hard disk, then you are probably going to have two serious downsides: (1) it is hard to argue the content was not usable -- it was used to create the disk reproduction; (2) you are conceding that a disk reproduction was made. Either way, you are likely to lose.
This was discussed at length during the good old "white paper" days. The question is going to entail whether or not a reproduction occurred. The requesting party will hold an unauthorized fixation of a digitally identical copy of the original. The issue will be one of substantial similarity plus access, and the authority for that proposition is myriad to any student of copyright law.
Precedent? Ninth circuit napster case makes the point slam-dunk, as i see it. The express finding that the end-user is an infringer was a predicate for contribution of the Napster service.
On your last point, the net to ram to disk not being copying, you again have to overcome the findings in MAI and Southeastern cases, both of which arrived at precisely the same analysis in the context of loading a program from disk into ram for execution.
On balance, I have lots of confidence that it is open-and-shut. Not without an amusing amount of research being necessary to attain the right result, but open-and-shut.
I can't speak to the "in most countries," as I do not practice the law anywhere but in the US. Count on it, in the US, you are violating the copyright act when you create a copy of a musical work on a hard disk or other fixed medium for which you do not have a copyright. Probably intermediate copies in RAM as well are liable under some 9th Circuit cases.
It is a more interesting question whether you are engaging in copy by transmitting same, but you are probably liable under a contribution theory even if not directly.
It is a losing argument to pretend that the conduct of the users in a p2p transfer of unlicensed musical content in most every case. The p2p software provider argument is a different one, grounded in contribution, and on the theory that they are not responsible for the users' underlying infringement, not that the user isn't infringing.
This should prove interesting since it looks like the filing at the USPTO occured two years after the domain was originally registered.
Not at all. For our foreign friends, the United States is not a first-to-file nation for trademarks, but a first-to-use. The registration has many relevant benefits, but it does not *CREATE* the right to the trademark (although it can in some other cases). The right to the trademark derives from use in commerce, which may or may not have preceded the domain name registration -- and a later filed application for registration can easily prevail if predicated on prior uses.
In this case, the application claims a remarkable date of first use in the late 70s. Whether it is true or not is litigable, and the oath of a known forger isn't terribly persuasive to support it, but the date of registration, that's not even an interesting question.
In the case of Explorica, I could have kicked their ass. The RFCs clearly state that web services cannot be demanded, they cannot be stolen, they are requested with a GET, and the request is either accepted or not.
Sounds good on Slashdot, but this is terrible legal advice.
Interestingly, the CFAA, and not the RFC is the law of the nation. The generalization fails, in both extreme and ordinary cases -- a person who serially guesses passwords until he succeeds has passed the passwd protocol, but has also hacked the machine to obtain unauthorized access -- this is not because of protocols, but because of the understanding that the password process is intended to be a gate.
Hypos can be built around HTTP scenarios that also use common sense understanding that some requests are ok, but others are verboten. YES, ABSOLUTELY, routine browsing can rarely create a CFAA claim, and in large part, I would argue from RFCs to show an implied consent to access information through routine protocols, but implied consents can be withdrawn -- and knowing entries where you are not wanted will be actionable AND criminal in appropriate cases, even if all you did was execute an HTTP GET.
The question is not really a technical one - nor is it even a purely legal one. It is a question of common sense and normative behavior. Was your conduct consented to, expressly or impliedly, and was the consent somehow vitiated by subsequent facts. It requires not a read of RFC's alone, but a review of the totality of the circumstances.
Social policy is more tricky than any simple mantra.
Common law is better for the average Joe because, being unwritten as it is, it is by neccessity far simpler and more straightforward.
This remark reflects little understanding of the meaning of these terms. Common law is not, by nature, unwritten -- to the contrary -- it is remarkably overwritten -- it is the aggregate of case law (all published), and its interpretation in accordance with stare decisis.
Far from "simpler and more straightforward," average joe more likely than not wouldn't have access to all of the information necessary to reach a conclusion, even if he could understand it once written. In contrast, most statutes are available for free on the internet.
The remark that statutes are "specially designed to be so complicated that you have to hire . .." is unsupported and silly.
Thanks, but Frankston and Bricklin were certainly first. I remember the first time Wizardry beat Visicalc on the Softalk poll list was one of the high points for me.
The United States Patent and Trademark Office fees have been paying for significantly more than the cost of operating the Office for many, many years now. Instead of turning those funds into additional resources, the federal government has for years, through administrations both Democratic and Republican, siphoned off the surplus, and then some, for general revenues.
In other words, inventors are paying for our tax cuts already -- not the other way around. Want better examinations? Tell the government take its mitts off the fees. Right now, the fees are paying for our wars.
So, Kevin's past peccadillos make him inherently unqualified to serve the public good, is that right?
How, then, can Tom Ridge even POSSIBLY CONSIDER using Doubleclick executives to protect the nation's privacy interests? After all, Doubleclick could not exhonerate itself from the claims of more than ten state attorney generals for violations of improper trade practices with respect to its invasive surveillance of consumer network usage.
It seems that this administration's left hand hasn't a clue what its right hand is doing.
It is so important in these uncertain times that we focus our vitreol on case where there is actual legislative or judicial overreaching.
Read the judge's opinion before leaping to conclusions. This is NOT a case that was decided on the merits of an underying DMCA claim.
The plaintiff in this case was not N2H2, but rather the fellow who wanted to do his reverse engineering. He sued under a theory of equity, seeking what is called a declaratory judgment. Before even reaching the question about whether the plaintiff is entitled to act, the Court must first address whether or not it has jurisdiction.
This isn't a light issue -- the Federal Courts only have jurisdiction over ACTUAL "cases and controversies." This is a constitutional limitation. The federal judiciary does not offer what is called "advisory" opinions -- ever.
Here, without touching on the DMCA issue at any level, the Court simply ruled that our erstwhile declaratory judgment plaintiff didn't have the standing to drag D2H2 to court. I agree with others here that the reasoning for no standing was not the Court's strongest argument, but in view of the Copyright Office excemption, this case just doesn't hold water on the standing question.
Listen to yourself, man. What else are these content people supposed to do? They are entitled by law to the exclusive rights to reproduce and distribute this.
Make no mistake, filesharing is often an infringement of these rights. They are ENTITLED to relief.
We damn, properly, them when they try to make technology regulation protect themselves, such as the DMCA. We damn them when they overreach and sue the non-infringing contributor, such as Napster.
But they are still entitled to relief, and you are NOT entitled to a free ride to the music. If a technology is established solely for the purpose of facilitating free-riding content sharing, there is something fundamentally wrong about it. And when RIAA gets out there to beat up on these people, we should probably be more circumspect.
The question I have for you here is this: assuming that RIAA was not willing to let you have a free ride, what exactly WOULD YOU HAVE THEM DO?
Slashdot Mirror
There already is one: the USPTO. The process, Patent Reexamination.
Reexamination may be initiated by any person willing to petition the office and setting forth any substantial new question of patentability. The Patent office can also begin such a process sua sponte (by its own initiation), as it did with the patents in the RIM and Compton's cases.
Literal copying of entire programs has nothing to do with reinventing a wheel. It is simply wholesale appropriation of expression.
What copyright does is force everyone to reinvent the wheel over and over again to avoid being sued, this slows progress.
Herein lies the beauty of intellectual property law. You are 100% correct that nothing is written or invented without standing "On the Shoulders of ye Giants." (OTSOG). Nothing. Not fundamental pioneering invention, not incremental improvement. Nothing.
For this reason, OTSOG is a fundamental policy that is balanced against other policies, such as the decision of society to provide limited monopolies to promote the progress of science and the useful arts. OTSOG is one of the KEY factors in driving the case law construing the limits of copyright.
This is why copyright does not have the effect you describe. In particular, copyright does not protect ideas, just their expression. Independent coding of an idea, even if it results in a verbatim copy, is not infringement. Scenes a faire, even if it involves wholesale copying of the original, are not protected. Fair use is not protected.
In short, you are correct, if by "reinvent the wheel," you mean a freedom to wholly appropriate the work of another without consent. I am not certain this is a bad thing. But you are entirely wrong if you think that you are not free to use the wheel as often as you like to the extent we are discussing ideas, concepts, algorithms and general coding principles.
a : the act of stealing; specifically : the felonious taking and removing of personal property with intent to deprive the rightful owner of it b : an unlawful taking (as by embezzlement or burglary) of property
You cannot STEAL information because information by design is not physical and cannot be contained.
Yeah, right. And when I hack into your bank to effect a transfer of assets for my own, I have taken nothing physical either. If we are going to get hung up on definitions, let us read ALL of the dictionary definitions:
word games neither inform nor resolve the issue. The intangibility of intangible personal property does not preclude the possibility of its theft.
Its debateable if file swapping if morally wrong at all. Some of us believe its a personal freedom, like freedom of speech, and that its not morally wrong but morally right.
Each of us have our own judgments about the morality and immorality of various acts. We don't have to agree about any of your points, however, to be able to mutually function in a society.
You don't need to agree with America's social norms to conform to them -- we don't have laws to make immoral things illegal, moral things immoral or immoral things moral -- we have laws to adjust and govern our conduct in accordance with the will of the majority, tempered by the Constitution.
You needn't agree with the principles for which these laws exist to be subject to them. That is the entire point of democracy. You may vote for representatives to pass or repeal laws you dislike, and are subject to them until you have so succeeded.
"Surely all manner of pr0n video-on-demand services must fall under this (rather large) umbrella"
Surely? Name one -- please identify each element of the claim and the part of the apparatus upon which it reads. Note the prior art distinguished during prosecution (discussed in and listed on front of the patent) and ask yourself how Microsoft avoided those with its claims.
Before defining the umbrella as large, it would be a good idea to actually find out how large it is.
No.
if he can't vacate this obviously unconstitutional order. Particularly when issued on an ex parte basis.
For the most part, consumers don't and should not have a problem with legitimate enforcement of copyrights -- even where they shut down or financially ruin the infringer who might be "just like you and me." Whether or not we may buy into the "infringement as theft" analogy, we understand what is the law, and why it is the law. When someone gets nipped for actually infringing, well, someone got nipped.
It is only in the arena of legislative and judicial overreaching where harm is done to society, where technology advances are retarded, and where the content owners unreasonably attempt to extend their monopoly on distribution of expression into a monopoly on markets in which they have no legitimate interest.
I guess we always needed a luddite caucus. If you can't beat the Unibomber, join 'em, I suppose. Congressmen calling for the stunting of technology -- how quaint.
I suppose they would have opposed the invention of the piano roll, too -- and that victrola, what a threat! The audio tape, the video tape and now the P.C. Ironically, it was these technologies that made the companies that build these Congressmen's campaign warchests.
At the end of the day, the market does a far better job of deciding what technologies the world need than does the Congress. Amazing how supposedly "conservative" congressmen don't think twice about regulating industries they don't understand to protect the interests of businesses they do. Alas, the one being regulated by them is the one driving our economy.
Distinguishing between the technologies and those who exploit them wrongly is the identifying feature of these doofuses. These guys would ban credit cards as forms of lockpicking tools because they can be used to jimmy open some old doors. We already have laws making copyright infringement illegal -- we don't need new ones to make criminals of other people who don't infringe and who make useful, important technology, just because some special interest group doesn't want to be vigilant or change business models to one that can succeed in the twenty-first century..
Luddites unite! Since we are already going to double the debt in the next few years, why not also wreck the economy?
This really isn't too hard a problem. In a p2p transaction, two machines are engaged in a network transaction to effect the copying of a file stored in one machine onto another. In such a case, both parties are engaged in a copyright infringement if the content was unauthorized for this transaction -- in one case, the uploading party has engaged in reproduction or distribution, and in the other, the downloading party has engaged in reproduction. There may be a legitimate question of volition, that is to say that there is non-infringement on one party's part if the transfer was accidental or negligent (such as where a receiving party hacks to get the file), but otherwise both parties are probably infringers.
It gets more interesting when no copies are stored, but for the most part, I seriously doubt that judges would give the kind of argument my colleague Fastolfe sees to be so intuitive much serious consideration. Not that I couldn't advocate the position, but I wouldn't give much hope.
I'd be willing to wager the result would be pretty much the same in most modern industrial nations.
The only thing the user can see, interact with or otherwise use (copy!) is the version on disk.
This isn't much of an argument against non-infringement. Assuming that all the user does is to reproduce the RAM image onto a hard disk, then you are probably going to have two serious downsides: (1) it is hard to argue the content was not usable -- it was used to create the disk reproduction; (2) you are conceding that a disk reproduction was made. Either way, you are likely to lose.
1. District Court made express finding of underlying infringement by dowloading into browser and then disk. This was affirmed by the 9th Circuit.
2. Scienter (state of mind) is irrelevant to direct copyright infringement. If you infringe directly, it is strict liability.
3. This isn't close to unsettled -- there are several p2p judgments already on the books, each relying on a finding of direct infringement.
*. MAI found that the RAM image was non-transient.
This was discussed at length during the good old "white paper" days. The question is going to entail whether or not a reproduction occurred. The requesting party will hold an unauthorized fixation of a digitally identical copy of the original. The issue will be one of substantial similarity plus access, and the authority for that proposition is myriad to any student of copyright law.
Precedent? Ninth circuit napster case makes the point slam-dunk, as i see it. The express finding that the end-user is an infringer was a predicate for contribution of the Napster service.
On your last point, the net to ram to disk not being copying, you again have to overcome the findings in MAI and Southeastern cases, both of which arrived at precisely the same analysis in the context of loading a program from disk into ram for execution.
On balance, I have lots of confidence that it is open-and-shut. Not without an amusing amount of research being necessary to attain the right result, but open-and-shut.
I can't speak to the "in most countries," as I do not practice the law anywhere but in the US. Count on it, in the US, you are violating the copyright act when you create a copy of a musical work on a hard disk or other fixed medium for which you do not have a copyright. Probably intermediate copies in RAM as well are liable under some 9th Circuit cases.
It is a more interesting question whether you are engaging in copy by transmitting same, but you are probably liable under a contribution theory even if not directly.
It is a losing argument to pretend that the conduct of the users in a p2p transfer of unlicensed musical content in most every case. The p2p software provider argument is a different one, grounded in contribution, and on the theory that they are not responsible for the users' underlying infringement, not that the user isn't infringing.
This should prove interesting since it looks like the filing at the USPTO occured two years after the domain was originally registered.
Not at all. For our foreign friends, the United States is not a first-to-file nation for trademarks, but a first-to-use. The registration has many relevant benefits, but it does not *CREATE* the right to the trademark (although it can in some other cases). The right to the trademark derives from use in commerce, which may or may not have preceded the domain name registration -- and a later filed application for registration can easily prevail if predicated on prior uses.
In this case, the application claims a remarkable date of first use in the late 70s. Whether it is true or not is litigable, and the oath of a known forger isn't terribly persuasive to support it, but the date of registration, that's not even an interesting question.
In the case of Explorica, I could have kicked their ass. The RFCs clearly state that web services cannot be demanded, they cannot be stolen, they are requested with a GET, and the request is either accepted or not.
Sounds good on Slashdot, but this is terrible legal advice.
Interestingly, the CFAA, and not the RFC is the law of the nation. The generalization fails, in both extreme and ordinary cases -- a person who serially guesses passwords until he succeeds has passed the passwd protocol, but has also hacked the machine to obtain unauthorized access -- this is not because of protocols, but because of the understanding that the password process is intended to be a gate.
Hypos can be built around HTTP scenarios that also use common sense understanding that some requests are ok, but others are verboten. YES, ABSOLUTELY, routine browsing can rarely create a CFAA claim, and in large part, I would argue from RFCs to show an implied consent to access information through routine protocols, but implied consents can be withdrawn -- and knowing entries where you are not wanted will be actionable AND criminal in appropriate cases, even if all you did was execute an HTTP GET.
The question is not really a technical one - nor is it even a purely legal one. It is a question of common sense and normative behavior. Was your conduct consented to, expressly or impliedly, and was the consent somehow vitiated by subsequent facts. It requires not a read of RFC's alone, but a review of the totality of the circumstances.
Social policy is more tricky than any simple mantra.
Common law is better for the average Joe because, being unwritten as it is, it is by neccessity far simpler and more straightforward.
." is unsupported and silly.
This remark reflects little understanding of the meaning of these terms. Common law is not, by nature, unwritten -- to the contrary -- it is remarkably overwritten -- it is the aggregate of case law (all published), and its interpretation in accordance with stare decisis.
Far from "simpler and more straightforward," average joe more likely than not wouldn't have access to all of the information necessary to reach a conclusion, even if he could understand it once written. In contrast, most statutes are available for free on the internet.
The remark that statutes are "specially designed to be so complicated that you have to hire . .
Or Wizardry, heh heh
Thanks, but Frankston and Bricklin were certainly first. I remember the first time Wizardry beat Visicalc on the Softalk poll list was one of the high points for me.
There's also Visicalc on a 6502. But many applications antedate that.
Evaluating a legal document based upon the number of square inches dedicated to a particular topic is nothing short of ludicrous.
The United States Patent and Trademark Office fees have been paying for significantly more than the cost of operating the Office for many, many years now. Instead of turning those funds into additional resources, the federal government has for years, through administrations both Democratic and Republican, siphoned off the surplus, and then some, for general revenues.
In other words, inventors are paying for our tax cuts already -- not the other way around. Want better examinations? Tell the government take its mitts off the fees. Right now, the fees are paying for our wars.
So, Kevin's past peccadillos make him inherently unqualified to serve the public good, is that right?
How, then, can Tom Ridge even POSSIBLY CONSIDER using Doubleclick executives to protect the nation's privacy interests? After all, Doubleclick could not exhonerate itself from the claims of more than ten state attorney generals for violations of improper trade practices with respect to its invasive surveillance of consumer network usage.
It seems that this administration's left hand hasn't a clue what its right hand is doing.
It is so important in these uncertain times that we focus our vitreol on case where there is actual legislative or judicial overreaching.
Read the judge's opinion before leaping to conclusions. This is NOT a case that was decided on the merits of an underying DMCA claim.
The plaintiff in this case was not N2H2, but rather the fellow who wanted to do his reverse engineering. He sued under a theory of equity, seeking what is called a declaratory judgment. Before even reaching the question about whether the plaintiff is entitled to act, the Court must first address whether or not it has jurisdiction.
This isn't a light issue -- the Federal Courts only have jurisdiction over ACTUAL "cases and controversies." This is a constitutional limitation. The federal judiciary does not offer what is called "advisory" opinions -- ever.
Here, without touching on the DMCA issue at any level, the Court simply ruled that our erstwhile declaratory judgment plaintiff didn't have the standing to drag D2H2 to court. I agree with others here that the reasoning for no standing was not the Court's strongest argument, but in view of the Copyright Office excemption, this case just doesn't hold water on the standing question.
Listen to yourself, man. What else are these content people supposed to do? They are entitled by law to the exclusive rights to reproduce and distribute this.
Make no mistake, filesharing is often an infringement of these rights. They are ENTITLED to relief.
We damn, properly, them when they try to make technology regulation protect themselves, such as the DMCA. We damn them when they overreach and sue the non-infringing contributor, such as Napster.
But they are still entitled to relief, and you are NOT entitled to a free ride to the music. If a technology is established solely for the purpose of facilitating free-riding content sharing, there is something fundamentally wrong about it. And when RIAA gets out there to beat up on these people, we should probably be more circumspect.
The question I have for you here is this: assuming that RIAA was not willing to let you have a free ride, what exactly WOULD YOU HAVE THEM DO?
That was, precisely, Napster's losing defense.