Forgot your password?
typodupeerror
Music Media

Napster Calls MusicNet Monopolistic; Judge Agrees 216

Posted by Hemos
from the battle-of-the-muzak dept.
MattW writes "Yahoo is carrying an article from the AP about a development in ongoing Napster litigation. Several major labels and RealNetworks formed MusicNet. Napster complained about an anti-competitive clause in the contract they signed with MusicNet, and Marilyn Hall Patel, best known to this community for her stern condemnation of Napster, agreed, stating that MusicNet had all the hallmarks of an anticompetitive business. The article goes on to state that, "If the recording industry was found to have misused its copyrighted material, it might not be able to successfully pursue an infringement claim on those works.""
This discussion has been archived. No new comments can be posted.

Napster Calls MusicNet Monopolistic; Judge Agrees

Comments Filter:
  • Excuse me? (Score:1, Interesting)

    by Anonymous Coward
    What right does Napster have to complain about ANYTHING? It was a business built on piracy, and I'm sorry, but I'm falling out of my chair laughing on this one.
    • Re:Excuse me? (Score:1, Insightful)

      by Magius_AR (198796)
      What right does Napster have to complain about ANYTHING?

      Why shouldn't they have a right? The music labels went out of their way to drive Napster out of business, and now that Napster is ruined and out of the picture, they intend to profit heavily through almost the same exact means Napster was using. If I were Napster, I'd be pissed too.

      Magius_AR

    • See, copyrights are not granted to "protect" or benefit "owners". They're granted to increase the amount of useful sciences and arts which are available to the public. Ultimately, to increase the public domain. That's the justification behind them. _Not_ classical property law. Now, if a copyright holder does certain things to restrict the availability of their products to the public (and this includes things like price-fixing), then they are undermining the reason why we (i.e. The Govt.) give them special monopolies. If a monopoly is found to be abusive, then the govt. has the right to rescind it, break it up, slap it on the wrist, whatever.

      The monopolists (RIAA) have a right to complain that Napster (as a file sharing company) is violating their monopoly.

      But Napster (the would be fee-paying download site) also has the right to complain that the RIAA is abusing their powers.

      No contradiction here. Just two different legal violations.

      (btw, if your sense of laughter was sparked by the fact that Napster was found guilty and so has no rights to sue the RIAA for _anything_, then perhaps you should also have been laughing when the RIAA, which was previously found guilty of abusing it's monopoly (i.e. MAPS) and yet had the gall to sue Napster afterwards. There is plenty of dirty laundry to go around.)

  • Here we go again (Score:4, Insightful)

    by bstrahm (241685) on Thursday October 11, 2001 @11:26AM (#2415512) Homepage
    Well it looks like we will never be able to download music on the internet. First it was because we weren't paying the artists, just shipping the music to each other, now it is because we have exclusive contracts with the artists to only use the one service that pays them...
    I Want my Net-TV (to paraphrase Sting from a Dire Straights song)
    • Re:Here we go again (Score:5, Interesting)

      by Bonker (243350) on Thursday October 11, 2001 @11:56AM (#2415669)
      Well it looks like we will never be able to download music on the internet.

      Hmm... I'm downloading music from the internet *right now* from a P2P filesharing service called USENET.

      Steve Vai rocks, BTW...

      Despite the best efforts of the RIAA to stamp out filesharing services, they have yet to seriously move against Usenet or convince any of the major ISP's to not carry the alt.binaries hierarchy. (I beleive Earthnet caved into the BSA and stopped carrying a lot of the alt.binaries.warez groups)

      Moreover, many ISP's have started to refuse requests from entertainment companies to TOS users because they share copyrighted material. They cite issues such as DHCP IP addresses and non-provability, but what it really boils down to is the fact that the ISPs realized that they'll start losing customers if the becoming known for TOS'ing their users.

      Sharing is alive and well, neighbor, and as long as its easier to share than it is to buy music, then the RIAA will just be spinning their wheels.

      "The more you tighten your grip,
      the more star systems will
      slip through your fingers."
      • Despite the best efforts of the RIAA to stamp out filesharing services, they have yet to seriously move against Usenet or
        convince any of the major ISP's to not carry the alt.binaries hierarchy. (I beleive Earthnet caved into the BSA and stopped
        carrying a lot of the alt.binaries.warez groups)


        They might not have directly try to shutdown Usenet but they have tried to shutdown Usenet clients like pan [rebelbase.com]. I can't find the link to the legal problems pan has had which is a pitty because it's kind of funny. Stuff like:


        bad guys: How would you like it if we gave out 1000s of copies of Pan for free?


        Pan guys: We like that, have you heard of the GPL before?

      • Sharing is alive and well

        So are "ethnic cleansing" (genocide), "holy war" (religious justification for political opportunism), "free love" (lust run amok) and a host of other euphemisms. I think the PC speech movement, as well as "weasel words" are also not only alive, but prospering quite nicely.

      • I use roadrunner and I am blocked off from usenet.
    • by eXtro (258933) on Thursday October 11, 2001 @12:07PM (#2415736) Homepage
      Thats not entirely true. We'll always be able to download music off the internet. The only real question is when will we be able to legitimately download music off the internet? Napster got in trouble for two reasons 1) RIAA is extremely greedy and 2) Napster was greedy.


      The only reason for Napster itself to exist was to skim money off of peer-to-peer networking. Once Napster became involved in fact it was no longer really peer-to-peer networking, there was an entity in the middle that operated as an information broker. Some percentage of the songs transferred via Napster were copyrighted, it seems fair that the copyright holders of those songs should be able to negotiate a percentage of Napster's revenue based on that. The RIAA, through its extreme greed, did the wrong thing and for all intents and purposes shut down Napster. If they were smart and/or less greedy they would've negotiated a fee based on the knowledge that they can't really stop file sharing but can get an indicator on what percentage of files are infringing. This would've been pure profit for them since their distribution costs are zero.


      Instead they're going after each new adulterated peer-to-peer network and shutting them down. The problem is they still aren't stopping file sharing and also aren't making any money off of it. Every side really loses, including the consumer who obviously really wants to be able to download files off of the net.

      • Wow, you put how I feel into words, I agree 100%. But what can we (or I for that matter) do about it that will make a difference, the RIAA seems to have a scorched earth policy, it's all their's, or nobody's.
      • Thats not entirely true. We'll always be able to download music off the internet. The only real question is when will we be able to legitimately download music off the internet?



        Is now [emusic.com] OK?



        (BTW I do not work for emusic, I am just a customer.)

  • by gorillasoft (463718) on Thursday October 11, 2001 @11:30AM (#2415530)
    From the article: "Napster's attorney argued to the court that an agreement reached earlier this year between MusicNet and Napster contained a provision unfairly giving MusicNet the right to terminate the contract if Napster sought agreements with other labels."

    This seems like something that Napster should have dealt with or drawn attention to during negotiation of the contract. It makes one wonder why they would even sign a contract of this nature. If nothing else, calling attention to it earlier may have helped them in ealier litigation. The only plus for them in signing the stringent agreement is that they have rights to the music now, and may be able to strike this part of the contract to enable them to gain rights to other labels' music in the future.
    • Not at all. (Score:5, Insightful)

      by werdna (39029) on Thursday October 11, 2001 @12:02PM (#2415706) Journal
      If nothing else, calling attention to it earlier may have helped them in ealier litigation

      Only if they had a crystal ball. Napster DID counterclaim for misuse, by the way, albeit on other grounds.

      But your facts are way off. The agreement did not exist at the time of the preliminary injunction hearing, so it couldn't have been raised at the time. Facts not on the record (that is, not adduced in the earlier injunction proceedings) are not relevant to the appeal, which is what we have been watching the past 18-24 months.

      It couldn't have helped them on appeal. It can only help them going forward. They will use this, and already have.
    • If during the negotiation of the contract Napster had successfully removed this clause, then they would not have been able to accuse the music industry of anti-competitive practices. By leaving it in, they gained the ability to say "Hey look at this terrible thing we were forced to sign." It might be a bit dirty, but Napster clearly needs anything they can use in their favor. And I'm sure no one here thinks the music industry is being completely open and honest while trying to knock out P2P sharing.
  • by Anonymous Coward on Thursday October 11, 2001 @11:31AM (#2415538)
    If the recording industry was found to have misused its copyright material, it might not be able to successfully pursue an infringement claim on those works.

    That seems a pretty heavy statement. I wonder how much of it was reporter/editorial speculation and how much of this was actually discussed by the judge.

    Considering the "BMG, Warner and EMI" are probably over 50% of the commercial music world already, a finding that they can't pursure copyright infringement claims could be monumental.
    • Damn it - I logged in, but it still took these as AC comments... :(

    • It's black letter law. Use copyright to maintain or establish a monopoly, loose the copyright.
      IANAL.
      • and have far reaching consequences. It may indeed, be exactly what we are looking for.


        Many here on Slashdot have wondered why the RIAA and the collective labels aren't considered a racketeering organization, considering they have consistently engaged in racketeering like behavior. This may very well be the proverbial straw that broke the camel's back. I am not a lawyer, but if it's true that you lose your rights to copyright if you engage in racketeering behavior may have some serious ramifications -- especially since they've been lobbying to keep it pretty much in their control forever.


        I wonder if this means that the songs have to go back to the artist or if they immediately slip into the public domain. I also wonder if they will pursue other legal action in light of this behavior. At the very least, it should be the first thing in a long time that should make the RIAA reconsider it's actions, as well as the MPAA and other organizations with a vested control in copyright.


        Give 'em just enough rope to hang themselves, it's never been truer.

        • IANAL but as I understand it the only effect it would have is on future lawsuits between the RIAA and Napster (or whomever they used their rights against to illegally thwart competition.) In Napster .v. RIAA 2, Napster might be presumptively innocent of copyright violation.
          • Theoretically, it can go so far as to strip the RIAA of all of their music copyrights. I'm not aware of any cases that go quite this far. There's an old case involving one of Edison's companies that might shed some light. It's the classic case of illegal bundling; but it wasn't dealt with under antitrust but rather under patent misuse. Copyright misuse is incredibly rare, BTW; patent misuse is much more common as a legal doctrine.

            Basically, Edison's company invented the movie projector, and held the patent on the projector. Edison's company also made films.

            In order to use the projectors, a theatre owner needed to get a patent license. (Remember, in order to use a patented article, you need a patent license? This is an example.) Edison, of course, happily licensed the projectors. However, a standard clause in the patent license was that the theatre owners sign an exclusive contract with Edison's film company.

            The theatre owners protested. Edison's films were not that good. And they won: although I can't remember what the remedy was, I think it may have been just the striking out of that clause in the contract. The rationale was that Edison was trying to use the patent in a way that the legislation did not want him to. Also, the film contracts did not expire with the patents, which was seen (correctly) as an attempt to unlawfully extend the term of the patent.

            • "Theoretically, it can go so far as to strip the RIAA of all of their music copyrights. I'm not aware of any cases that go quite this far. There's an old case involving one of Edison's companies that might shed some light. It's the classic case of illegal bundling; but it wasn't dealt with under antitrust but rather under patent misuse. Copyright misuse is incredibly rare, BTW; patent misuse is much more common as a legal doctrine.


              Basically, Edison's company invented the movie projector, and held the patent on the projector. Edison's company also made films.


              In order to use the projectors, a theatre owner needed to get a patent license. (Remember, in order to use a patented article, you need a patent license? This is an example.) Edison, of course, happily licensed the projectors. However, a standard clause in the patent license was that the theatre owners sign an exclusive contract with Edison's film company.


              The theatre owners protested. Edison's films were not that good. And they won: although I can't remember what the remedy was, I think it may have been just the striking out of that clause in the contract. The rationale was that Edison was trying to use the patent in a way that the legislation did not want him to. Also, the film contracts did not expire with the patents, which was seen (correctly) as an attempt to unlawfully extend the term of the patent."


              Mod parent up. This is realy interesting.


              I can here the Judges booming cynical voice now. "Objection sustained. So Miss Rosen, you didn't pay much attention to the courts insights into Edisons movie theater licencing. Can you explain how this is different than your DVD restrictions. Then you will please explain your relationship with the orginiztion that created the DVD standards...I'm waiting."


              Along the same lines, does anyone know of cases where resale of printing press plates and acompinying licences to print their content were found to be fair to be resold?


              How about a business on trial for using a printing press patent to licence(enforce cough *choke*) content restrictions?


              How could I donate to fund such research? I think I might write the EFF on this.

              • It's a nice idea, but printing presses are too old. Patents for invention don't go back to Gutenberg. While you can patent specific improvements on the press - and people do - those improvements just don't give you enough market share to try and pull an Edison-like stunt.

                The thing about the Edison case was that the Edison company had all the patents on film projectors wrapped up. (Edison was really, really good at tying up patents. Marvellous businessman.) This allowed them to try and do this market grab.

                I doubt you're going to find many comparable situations, unfortunately. Even what the RIAA proposes isn't as bad as what Edison was trying to pull. Even monopolies like Diamond Comics aren't as bad.

  • sometime in the future....

    me: Man, I just can't get than new Madona song out of my head.
    BMG-Warner-EMI-Borg: You owe use $2.11

  • but it looks like big music business and the RIAA have been given all the rope they need to hang themselves.
  • Other services (Score:2, Interesting)

    by steveo777 (183629)
    BTW, this may be a little off topic, but there are other services that allow music to be redistributed throughout people. Are these sites catching RIAA flak yet? Or does the RIAA not notice sites that don't get public spotlight?

    I'd mention them, but I'm sure people know what they are. And I don't want them catching any flak by my account.

    • Better yet - is there any online repository of *solely* free-music, that artists have made free? I see a lot of MP3s on a lot of artist sites, but no central place where they can be searched/downloaded. I'd like to move from the mainstream, but it's so hard since Napster closed - there aren't enough people on any of the other services to reach the critical mass that it had.
    • Re:Other services (Score:3, Informative)

      by peter_gzowski (465076)
      The RIAA is going after the FastTrack [fasttrack.nu] network (KaZaA [kazaa.com], Morpheus [musiccity.com], and Grokster [grokster.com]) next. This is going to be the next big battle, as this network isn't centralized (at least, not as centralized as Napster was), so the RIAA will have a harder time proving that FT is responsible. Another intesting thing about the FT network is that the latest version locks out the open source client that the giFT project [sourceforge.net] is developing (it worked again briefly over the weekend, but now it's broken again). While they try to get it up and running with the new FT network, they say that they're also developing and their own open source network (OpenFT).

      In parallel with the FT assault, the RIAA, as of Monday, decided to go after AudioGalaxy (read about it in the NY Post [nypost.com] over here [nypost.com]). AudioGalaxy has filters in place, but the RIAA says they aren't good enough.
  • who /is/ fair? (Score:5, Insightful)

    by SirSlud (67381) on Thursday October 11, 2001 @11:38AM (#2415568) Homepage
    Exclusivity deals are quite the hot topic right now. Intel is taking heat from the EU for exclusivity provisions it has with computer distributors. my boss and I were wondering why someone like Coke or Pepsi is allowed to ensure exclusivity with its distributors (fast food chains, etc)? Whats the difference?
    • my boss and I were wondering why someone like Coke or Pepsi is allowed to ensure exclusivity with its distributors (fast food chains, etc)? Whats the difference?

      None. It's restraint of trade in all cases.

      I always think it's amusing that Coke is somehow perceived a symbol of "rampant capitalism" when they are so strongly opposed to free markets.

      • None. It's restraint of trade in all cases.

        In DeLand, Florida, there is a Pizza Hut that serves Coke products - advertised on the fountains, etc. I always (as did other observant people) wondered about this abberation (most people never noticed). I wonder if that's to protect them, or if the owner just decided "damn the company line, I like Coke".

        --
        Evan

        • Re:It's never fair (Score:3, Informative)

          by Bonker (243350)
          I used to work at a Pizza Hut, so I'll clear this up.

          PH corporation is a subsidary of Pepsi Cola, along with several other big-name fast food chains like Taco Bell and KFC. Most of the PH's across the nation are maintained by several district offices and report directly to PH corporation, and therefore back to Pepsi Cola.

          Pepsi considers this an expensive way to do business because, while they profit from those stores (Markup on a Pizza was close to 5000%) they still have to pay wages and administrative costs. I'm not sure of the math, but Pizza Hut beleives they ultimately make more off of Pizza Hut franchises thank they make off of wholly owned stores.

          Thus, unlike Taco Bell, there are a great number of Pizza Hut Franchises across the the country. Those franchises are owned by individuals or other companies who pay PH and Pepsi a precentage for the right to use the Pizza Hut logo, recipies and to participate in speicial promotions. Since they are privately owned, the owner has the right to do anything he wants in the way of adding or subtracting things from the menu. Most PH franchises offer Coca-Cola products in addition to or instead of Pepsi products. They may also do things like add or subtract certain toppings that can be ordered on a pizza. Some Franchises opt to not sell Pizza Hut's 'Thin Crust' pizza, because automatic dough rollers are fairly notorious for crushing finger bones.
          • Re:It's never fair (Score:1, Informative)

            by Anonymous Coward
            PH corporation is a subsidary of Pepsi Cola, along with several other big-name fast food chains like Taco Bell and KFC. Most of the PH's across the nation are maintained by several district offices and report directly to PH corporation, and therefore back to Pepsi Cola.

            Not any more. See this [triconglobal.com] page:

            Tricon became an independent, publicly owned company on October 6, 1997, when four companies (KFC, Pizza Hut, Taco Bell, and PepsiCo Restaurants International) were spun off from PepsiCo.
          • (Markup on a Pizza was close to 5000%)

            So a $10.00 pie costs less than twenty cents to make? Damn, we should be dropping Pizza Hut on the Afghans, it'd be a lot cheaper (and tastier) than those $5.00 HDRs they're dumping now!

            Hold the pepperoni!
      • Re:It's never fair (Score:2, Informative)

        by BradleyUffner (103496)
        There is a Subway here in Gaithersburg, MD that has fountains for both coke and pepsi right next to each other. That's the only place I've ever seen it, and it was kind of freaky.
      • Re:It's never fair (Score:3, Insightful)

        by greenrd (47933)
        Well it's quite simple really. Without adequate government intervention, capitalists will conspire to destroy free markets. As... guess who... said?

        Adam Smith.

        • Do you have a source for that? I'd love to be able to quote that.
          • That's not an actual quote. The actual quote is:

            "People of the same trade seldom meet together, even for merriment or diversion, [without planning] a conspiracy against the public, or some contrivance to raise prices."

            See http://www.sparc.bc.ca/sparc_news_archive/sn16_3_i nvisible_hand.htm for more details. As Noam Chomsky pointed out in a hilarious essay, the defenders of modern capitalism frequently point to Adam Smith whilst ignoring what Adam Smith actually said, which was quite different to today's libertarian-style economic theories.

    • Nobody's fair. (Score:5, Insightful)

      by e-gold (36755) <jrayNO@SPAMmartincam.com> on Thursday October 11, 2001 @12:09PM (#2415749) Homepage Journal
      And everybody (most-especially me, to get any self-interest out of the way) wants to be the middleman. The question artists and consumers should be asking themselves is, "what kind of middleman do I want?" The current middleman/men? is what I call a quintopoly (a five-way monopoly) which has survived up to now largely because of the difficulty artists have had in directly reaching their fans through traditional means. The quintopoly is top-heavy with management who are used to (as Courtney Love put it [hole.com]) lots of trips to Scores and other perks. Life for the artists (even when they "make it") is therefore not nearly as lucrative as many imagined before Courtney's rant [hole.com], which appeared in Salon a while back.

      The internet changes (or should change) all that (and yes, I hope that the change will benefit me). How can music consumers make sure that most* of the money that they spend on music goes to actual musicians instead of non-producers? Well, I have a few ideas, but

      http://www.scottmccloud.com/comics/icst/icst-5/ics t-5.html [scottmccloud.com]

      and

      http://www.scottmccloud.com/comics/icst/icst-6/ics t-6.html [scottmccloud.com]

      show some cartoons that explain things visually better than I ever could in this rant. Enjoy.
      JMR

      * - anyone promising artists "all" the money is probably lying.

      Speaking ONLY for myself!!!

      • Re:Nobody's fair. (Score:3, Informative)

        by haruharaharu (443975)

        Ugh. That stuff that scott is spewing may work for the established artist, but try to make a name with it. Now for the Penny-arcade response:

        I can't stop Talking! [penny-arcade.com]

        • By far, the funniest part of "I can't stop talking" is right at the bottom of his page...Ask yourself, is he (unintentionally??) making his target's point, or am I just missing some distinction/difference? (One thing I did like was the reference, when the artist wanted to trigger emotion rather than rational thought, to the filthy yellow metal. Some things never change...)

          To become "established" as an artist, you need talent, hard work, and good luck -- in a variety of proportions, and of course life's not fair, but I don't think that saying things like "ugh" work to refute Scott's arguments once reality hits (even if it's not right at the bottom of the page). Just MHO.
          JMR

          Speaking ONLY for myself!

      • by twitter (104583) on Thursday October 11, 2001 @07:24PM (#2417665) Homepage Journal
        The I Can't Stop Thinking logic is underpinned by this statement they make, "Money...is never far from the minds of artists in a capitalist society." This is true only for a class of artists and it's the same logic is used by the "middle men" he disparages.

        Many artists are not dependent on their craft for their livelyhood. They have jobs that may or may not be related. They work for wealthy patrons and institutions. They do all sorts of things and consider their crafts luxuries. Some people even make things for the people they like, without looking for a reward. Anyone can do this if they want, you don't have to be wealthy to water paint. People painted, sang and made cool things for each other before money was invented.

        It is arrogant to think people like that can not develop their crafts as fully as those who have to hussle them. D'Vinci was mostly a military advisor and party planner. His society was as capitalist as they come. In fact, artists who are indepenent of their craft are the only ones who can produce the artwork without editorial constraint.

        • Interesting comment. I'll try not to be arrogant.

          I agree (and I think Scott would, but I'd best not try to speak for anyone but me) that many -- probably most -- artists aren't at all dependent for their livelihoods on their art, but I think what he's trying to say is "if you want more of this stuff, that means I'll have to cut back on the ol' day-job, but somehow I'll still need some scratch." There are also those who argue that artists like DaVinci, Van Gogh, Dali, Picasso, and others should benefit more from their art within their lifetimes, as opposed to estates seeing huge increases in value long after the artist dies.

          That means money-to-artists, and money -- for better or worse -- attracts middlemen. I don't think I've implied that artists who make less can't develop their crafts fully, but clearly, if you have to work your art around a 9 to 5 job and someone else can concentrate solely on the art, that someone else is likely to have an advantage in quality & quantity over you. Money may not be the main goal, but it's a goal when you don't have any for a professional artist.

          I'd also disagree with your idea that "People painted, sang and made cool things for each other before money was invented." Money's a pretty old concept, especially the yellow stuff. Collecting gold nuggets (nature's art) for a while has made me believe that money probably predates many things. People want them, because nuggets are amazingly beautiful (it's almost a shame mankind makes so many bullion coins and bars with the stuff).

          When early man found a nugget, it's almost certain he/she kept it, and later use as trade/barter/art/money/adornment was a natural. It's almost certain that the yellow color and unusual appearance of a pure (mostly) metal in nature (often ocurring along with quartz, which can also be quite beautiful and pure-looking) reminded him/her of the sun, which he/she probably worshipped at the time. Some of the ideas in this paragraph come from conversations I've had with money-artist J.S.G. Boggs who -- like me -- has experienced having very little money.
          JMR
    • My boss and I were wondering why someone like Coke or Pepsi is allowed to ensure exclusivity with its distributors (fast food chains, etc)?

      Well in the case of PepsiCo, they either own, or own a large interest in another company that owns: Kentucky Fried Chicken [kfc.com], Taco Bell [tacobell.com], Pizza Hut [pizzahut.com], D'Angelo's Sandwich Shop [dangelos.com], Chevy's [chevys.com], and California Pizza Kitchen [california...itchen.com].

      Exclusivity deals like this are not a problem, because Joe Consumer still has a choice-- if you don't want to drink Pepsi products with the food you get from those places, you can always take the food home and drink whatever you want with it there, or you can eat someplace that offers Coca Cola products instead.

      ~Philly
    • Whats the difference?

      The difference is when you are a monopoly, or when you are a group of competing companies acting together to form a monopoly.

      Phillip Morris can cut deals with retailers to deny display space to other cigarette manufacturers, because they only have 50% or so market share in cigarettes. But American Tobacco (Skoal, Copenhagen, Red Man) will probably lose a lawsuit over the same practices because they have over 90% market share in smokeless tobacco.

      I would guess that if the record companies wanted to do this individually, they'd be okay. But because they're cooperating to restrain trade for the whole industry, they won't be allowed to do this.
    • Re:who /is/ fair? (Score:3, Informative)

      by skullY (23384)
      my boss and I were wondering why someone like Coke or Pepsi is allowed to ensure exclusivity with its distributors (fast food chains, etc)? Whats the difference?
      I actually asked a restaurant owner about this once. Appearantly there's nothing stopping a restaurant from carrying both Pepsi and Coke (and/or RC Cola, etc) but the local distributers make it worth their while to carry only one by giving away freebies. You know, small things like soda fountains, glasses, signs, etc. Sometimes they also give them a break on the cost of the syrup and (This is me theorizing here) waiving the deposit on syrup canisters.
    • There is a rather large difference in the US with regards to copyrightable material.

      One must understand that all music is actually owned by the general public in the US, not by the creators of the works. The government hands the creators of the work limited temporary control over their work to (originally at least) promote artistic expression.

      When a corporation takes this limited temporary control that was intended to promote artistic expression and uses to extend a monopoly which has the side effect of *limiting* artistic expression, the copyright can no longer be considered valid.

      Frankly, the very fact that copyrights have been extended past the original 20 years without any evidence that such an increase would do any more to promote artistic expression should have been considered a crime of criminal proportions as it has ended up making the public pay for works that they already own without any additional reward (additional artistic works) which amounts to extortion.

      Of course, that's just my opinion... I could be wrong.
  • by hex1848 (182881) on Thursday October 11, 2001 @11:39AM (#2415576) Homepage
    napster actually won a court battle?
  • by Green Aardvark House (523269) on Thursday October 11, 2001 @11:39AM (#2415579)
    If the recording industry was found to have misused its copyright material, it might not be able to successfully pursue an infringement claim on those works.

    Could this be new life for Napster? Some of the public has noticed this, that the labels act in a form of cartel, especially since they are investigation for anti-trust violations [slashdot.org]. They have also been successfully sued for price-fixing in the past as well.

    The judge should have noticed these types of actions sooner.
  • by weez75 (34298) on Thursday October 11, 2001 @11:39AM (#2415582) Homepage
    It seems Napster has figured out that when members of a market collude (act in concert) they are in fact an oligopoly. This in many cases is more powerful than a monopoly. The number of companies with the resources to promote and distribute music is very small. That means that by antitrust definitions they have the most influence over price as well as the ability to create unfair barriers to entering the market.

    What this means is that someone finally has figured out that the way to fight the situation isn't to attack record companies for protecting their works but instead, attack their methods of controlling the market.

    You and I can in turn support this effort by not buying music from those colluding in this market. Quit complaining about the record companies and the way they handle Napster and Morpheus--just quit buying their products. Buy independent label artists, listen to the radio, pick up an instrument and play it. Let the file trading companies fight the antitrust battle...

    • I think that if they attack the collusion and not a specific entity it becomes a RICO (racketeering) case, not an anti-trust action.

      This is good because IIRC RICO is a CRIMINAL action, and leaves the companies open to everything from fines to revocation of charters.

      Disclaimer: IANAL
      • by fishbowl (7759) on Thursday October 11, 2001 @12:33PM (#2415897)


        > This is good because IIRC RICO is a CRIMINAL
        > action, and leaves the companies open to
        > everything from fines to revocation of charters.

        It allows for something else that I find delicious: Prison time for executives.
        And the best part? You can end up in prison
        because you are the highest level of authority
        that "knew or should have known" about the violation.

        That means you don't even have to have your manicured hands dirty to be escorted out of your
        ivory tower in handcuffs. Even if you "don't know" about the corruption in your organization,
        if the FBI can prove that you "should have known",
        you're responsible.

        I love RICO. OSHA is pretty good like this as well...

      • by raresilk (100418) <raresilk@ma c . c om> on Thursday October 11, 2001 @02:02PM (#2416350)
        both legal remarks not exactly correct (nothing personal).

        Under the Brooke Group case, decided by the US Supreme Court in about 1995, oligopolistic collusion to dominate a market can constitute an antitrust violation, even though none of the players has sufficient market power on its own to constitute a monopoly.

        You're partially correct in that abusive business conduct might also form the basis for a RICO claim. However, you need certain specific "predicate acts" to support a RICO violation, and although criminal infringement of a copyright is a predicate act, misuse of a copyright is not. So I wouldn't be too quick to assume that this is just the "reverse Napster case" here.

        RICO also comes in *both* civil and criminal flavors. Criminal RICO charges would have to be brought by the Justice Dept., and although the penalties sound scary, don't forget that the wheels of government turn slowly, and there's an awfully high burden of proof to convict someone of a crime. (And also, I suspect they're quite caught up in other stuff at Justice right now.)

        In contrast, civil RICO claims can be brought by any individual/company who claims to have been "injured in business or property" by the RICO violation. A successful claimant is entitled to treble damages, so although it doesn't sound as threatening as criminal charges, civil RICO is no little mousie.
  • by WyldOne (29955)
    Perfect case of Dog bites human. I hope Napster gets a good bite out of the recording labels. Pitt bull any one?
  • by sphealey (2855) on Thursday October 11, 2001 @11:42AM (#2415593)
    You mean that ANTI-TRUST law applies to the music industry??? Howdidd 'at happen? Have to get that outrage corrected right away - "Senator Hollings!".

    sPh
  • by Hooya (518216) on Thursday October 11, 2001 @11:43AM (#2415600) Homepage
    tho napster's 'business' model was questionable, it was questioning something more questionable.

    bear with me. napster by itself -- wrong. but napstering the products of a cartel -- at least it brought to light the cartel that is the RIAA. hope something is done about the cartel. until then i have boycotted 'em by not buying any music (yeah, yeah, what difference can i make? right? well, you're not getting my $16.) no i don't steal it either. i just play what's on radio (that's still legal right? even tho i don't pay for the content 'streamed' to me thru my radio...) in other words, i have done away with the concept of owning any CDs or tapes. we don't 'own' them anyways right?

    my $.01. what can i say, the economy is shit and i can't afford $.02 for this crap.

  • or I hope so! These days, we always see the _Big_ corporation/organisation (you can replace _Big_ by the name of your choice) winning over the little one in court battle. This time, I hope that MusicNet will be found guilty, this will show people that the giants in the record industry can't do whatever they want with their copyright toys...
  • It wasn't judge Patel who said "smells bad looks bad is bad", that was napster's own counsel. The good judge referred the question to experts, and accepted that the argument might be valid.

    I dunno, when are the editors going to stop playing up and exaggerating stories? I don't understand sometimes. You know I only read slashdot because it has this wonderful user base and excellent moderation system, which makes it the most readable "news" site on the net.
    • "Patel said MusicNet appeared to have the hallmarks of an anticompetitive business enterprise that ``looks bad, sounds bad and smells bad.''"

      I dunno, it would appear to me that Patel did actually say that.

      • >"Patel said MusicNet appeared to have the hallmarks of an
        >anticompetitive business enterprise that ``looks bad, sounds bad and
        >smells bad.''"

        Does this mean that the RIAA and the others are follow the example of Microsoft and bitch about Patel's comments to the Supreme Court also?

        It looks like Judge Jackson is becoming a very popular role model.....
  • I'm completely in favor of an examination of the whole beast, but how can a judge use one case to open up another entirely separate ball of wax? Without something like a class action suit against MusicNet or maybe Commerce or someone in enforcement beinging an action, isn't she pretty much hogtied to only rule on what Napster is doing?
    • The music industry cannot pursue claims against napster if its hands are being dirtied in a related facet of the industry (online music distribution).
    • I do believe the Judge can pinch-hit for a lawyer. Rumor has it that most judges are lawyers, or at least were.

      BTW, this is wickedly great news, but a bit too late to save Napster. It is, tho... vengeance.
    • Napster's attorney raised the issue, as a defense. Conspiracy in restraint of trade can be a defense to copyright infringement.

      Napster could also, separately, start up an antitrust suit against the music industry, perhaps joined by other parties. That could be interesting. When all the big companies in an industry form a consortium to exert stronger control over the pricing of their product, it's hard to argue that it's not restraint of trade.

  • by Hobbex (41473)

    All the potential users for such a service are already using MusicNet. Go ask Hillary Rosen and Lars Ulrich yourself if you don't believe me...
  • You can bet that the music monopoly will now concentrate its lobbying effort to bribing congressmen into softening antitrust laws to fit their needs.
  • by Anonymous Coward
    Boycott all major label artists, even if you like them. Buy nothing that comes from an RIAA affiliated label and they will waste away. They survive and abuse you over and over again only because you collude with them by buying their product. Artists collude to be ripped off too by signing recording contracts with the illusions of stardom that the industry promotes to gather more slaves. Artists must revolt. Consumers must revolt. That's the only way to break the monopoly and free yourselves.
  • You know, this all looks to me like a pretty clear violation of the Sherman Antitrust Act, which prohibits "agreements, combinations or conspiracies in restraint of trade." If RIAA and MusicNet aren't a combination in restraint of trade, I don't know what is!
  • "misuse claim" (Score:1, Redundant)

    by fishbowl (7759)
    "If the recording industry was found to have
    misused its copyright material, it might not be able to successfully pursue an infringement claim on those works. If the recording industry was found to have misused its copyright material, it might not be able to successfully pursue an infringement claim on those works."

    I have two problems with that sentence.
    First, it is purely editorial, and
    not derived from the facts of the story. Judge
    Patel did not say anything so strong.

    Secondly, it bothers me that the subjunctive case
    has nearly been lost in the English language, even
    among journalists. That sentence should start
    "If the recording industry were found..."

    As it is written, it has a possibly different meaning than the writer intended. Forgetting how
    and when to use the subjunctive limits the range
    of verbal expression when a distinction is needed
    between events that have happened in the past and
    hypothetical events.

    • Copyright and Patent can be revoked if used in an inappropriate manner by anything monopolistic. If they are in violation of the antitrust laws on this, they could lose rights to anything that was provided on the MusicNet service.

      This is one of those things I've been wondering about for a while- why don't you go after RIAA and/or MPAA for being a cartel and thereby using an effective monopoly position to fix prices. If they're guilty of it, all the "properties" involved with the violations (which would be pretty much everything...) would cease to be the propery of their members.
  • by aeo (517448)
    Go see live music.
  • by Anonymous Coward on Thursday October 11, 2001 @12:38PM (#2415923)
    I doubt that the RIAA will lose their ability to enforce their copyright, but imagine if they do: there will be an awful lot of artists (actually, a few big names) who will be really pissed at the music companies for throwing away an important source of income. Can you say "major lawsuit"? This would finally dispel the myth that the RIAA is looking out for artists (when a growing number of people understand that the RIAA is only there for the record companies - which don't mind if a small percentage of artists actually make some money).

    YACC - Yet Another Anonymous Coward

  • At the very end, the article says that the judge "said she may appoint a special master to examine all documentation, including artist contracts" (emphasis mine) before ruling.

    Including artists contracts...

    I find this very interesting. What's the latest on Courtney Love's suit against the record companies?
  • Finally Caught Out (Score:5, Interesting)

    by nellardo (68657) on Thursday October 11, 2001 @01:01PM (#2416040) Homepage Journal
    When I worked at Sony [sony.com] a few years back, pre-SDMI [sdmi.org], one of the things I worked on was the technology for electronic content distribution. I was the tech liaison between Sony Corporation of America (SCA), Sony Music (SMEI), Warner Music Group (WMG), IBM (tech and business groups), and Sony research labs in Japan (aka "Tokyo").

    Aside from the (questionable) joy of explaining cryptography to suits and explaining licensing requirements to geeks (Harry Fox [harryfox.com] helps throw a real monkey wrench in there, administering rights for song-writers), one of the things that came up time and time again was anti-trust issues.

    SMEI and WMG were well-aware that together they represented about 30% of the market (they split that up, flip-flopping every year over who has the most based on who had bigger hits). Their expectation was that a joint venture between them would attract BMG, Universal, EMI and whoever was number six at the time. Then independents would simply have to fish or cut bait and join up as well.

    Everyone was very careful to avoid using words and phrases like "controlling", "domination", etc. at least in written materials. People would verbally joke that they needed to make sure those words weren't written down, in case they ever got subpoena'ed for anti-trust, but everyone knew that the objective was making the HBO [hbo.com] of electronic music distribution. You see, they recognized that HBO had the movie companies by the short and curlies as far as cable distribution of films went, and didn't want the same to happen to them in a new media distribution - the film companies have been worrying about this for themselves for electronic distribution for a couple of years now.

    Of course, Napster [napster.com] beat them to it, so they beat on Napster legally. One of the funniest things about the timing of these things for me was SDMI being announced just after MP3 hit the cover of Time Magazine, when I'd been working on it for years prior. And of course they got the DMCA passed in the meantime, making cracking even the stupidest of copy control schemes illegal. Of course, every crypto expert they talked to at the time (myself included) emphasized that no scheme was foolproof and you should be sure to design the system to minimize damage in the case of a crack. Being powerful executives with lobbyists on retainer, a legal solution was obvious.

    So, all in all, I'm pleasantly amused that the music companies got just a bit too eager and slipped in one phrase too many.....

  • by terrymr (316118) <terrymr&gmail,com> on Thursday October 11, 2001 @01:07PM (#2416074)
    This was perfect timing - suddenly point out that the RIAA are in fact not the copyright owners and that they are a monopoly.

    The same thing happened in the MP3.com case I believe.

    The RIAA's members have been misrepresenting copyright ownership for years --- look at a cd does it say "&copy 2001 insert band name here"? - no it says "&copy 2001 insert really big record company name here".

    Now go look at the copyright notice in a book - it shows the author as holding copyright doesn't it ?

    In the same way the artist owns the music and the record industry licenses certain rights from the artist (unless they have an express agreement transferring the copyright to the record company - this may be the case with smaller newer artists but anybody who knows the business isn't going to assign their copyright to a corporation for life).

    And don't tell me that the music is a "work made for hire" because neither the courts or congress believe in that fairy tale so the record companies can't claim ownership that way.

    Oddly enough the RIAA don't even own the rights to publish the music that is owned by the music publishers. All the RIAA owns is the "mechanical rights" in the CD,tape or whatever. Or at least that's what the licenses I used to have for public performance of recordings say.

    BTW IANAL
    • As a thought consider the following situation.

      The individual songs, the lyrics, the music are the property of the recording artists - after all - they expended the energy, creativity, consumed the beer and pizza in order to write them.

      Then time comes to record the music in an album. Essentially an album (CD, Tape, Vinyl, Whatever) is a combination of the music of the band, the lyrics, as well as the effort of the recording studio, the mixing, the physical production of the CD, the cover art, etc etc.

      So you could well end up with a situation where the music is copyright to the artists (after all, they created it), however the assembly of the artists music into an album may well be copyright of the recording studio.

      When I used to do some web sites for small businesses, I usually took the following approach (and there is a strong connection here - as the business didn't actually pay for the web sites).

      The text, logos, information that the business provided I treated as the business having the copyright to - after all - they wrote it, or paid for the logos.

      The actual HTML code, the websites were copyright of the organisation that I belonged to that made the code.

      So, DIDN'T hold copyright over the information - but we DID hold copyright over the finished work.

      So, the individual items are copyright one party.
      The collected work could be copyright to a different party.

      In reality - if we wanted to reuse the material - then we would need to negotiate for it - if they wanted to reuse our website - we would need to negotiate for it. It will most like come down to the contracts that are in use. (Read the fine print).

      Standard Disclaimer: The closest I ever got to legal knowledge was sitting in one lecture, that I wasn't even enrolled in (IANAL).
  • by dpilot (134227) on Thursday October 11, 2001 @01:10PM (#2416088) Homepage Journal
    CDs list for $17.00.
    Cassettes list for about $10.00.

    CD media is one piece, no replication time because it's stamped. CDs are SOOOOO cheap that they're the AOL distribution method of choice.
    Cassettes have between a half dozen and a dozen pieces that need assembly, and even though they're thermally dup'ed much faster than the 1 7/8 ips they're played at, there is still a duplication time. As soon as possible, software makers got out of the cassette business.

    So cheap cost = expensive price, so much for this being anything but a marketing exercise. The cost appears to have NOTHING to do with the price.

    CDs came out over a decade ago at about the same price, when they were a novelty. At the time, one figures these are computer-stuff, and prices will come down as technology gets better. They haven't.

    Moreover, we have many recording labels producing CDs, but there doesn't appear to be ANY significant competitive pressure. Just about any other industry would get strung up for 'collusion' or something like that, in this situation.

    Napster wasn't just people cheating because the technology became available. IMHO we all know we're getting ripped off. That doesn't make Napster right, but also IMHO this puts the current situation into a more Prohibition-like setting. The current situation allowed/required by the law is STUPID and WRONG.

    IMHO whenever crime reaches the epidemic proportions of Napster (or Prohibition, or drugs) something needs to be done besides simply enforcing and stiffening the law. In the case of Prohibition, it was repealed. IMHO in the case of drugs, the collateral damage of drug financing and attempts at enforcement are worse than simply controlling drugs like alcohol and cigarettes. IMHO for Napster, serious examination of pricing and collusion are necessary, combined with a review of copyright provisions. (My kids are Beatles fans, and last I know Michael Jackson gets the revenue. How does this encourage the Beatles to produce more music this many years later?)
    • by nexthec (31732) on Thursday October 11, 2001 @01:52PM (#2416295)
      Some more intresting tidbits about CD's:

      Artist get less profit from them, because they are a "New" media

      Artist get less profit, because the record lable withholds for breakage. A common occurance during shipping of LP's, but rarely now because CD's are much stronger.

      Remeber the old packaging, like what costco still does? That was the most expensive part of the whole process, but they got Bono out to "save the trees" and made a comercial. Now CD Retailers have to purchase the resuable plastic ones, raseing the cost to consumers, while bulk CD prices dropped not one dime.

    • > How does this encourage the Beatles to produce more music this many years later?

      Well, maybe with Michael Jackson's experience at coming out of the grave, he might be able to bring back John Lennon.
  • Things we can do? (Score:4, Insightful)

    by beowulf_26 (512332) <beowulf_26 AT hotmail DOT com> on Thursday October 11, 2001 @01:15PM (#2416112) Homepage
    I'm surprised to see that Napster's still fighting the recording industry tooth and nail. And while file sharing programs are 'fun' I'm the first to admit that such specific 'free music' programs are illegal.

    Like many other consumers I can't stand the idea of the large recording industry's strangle hold on the market because of inflated prices, exploitation of green artists, and copy protection (who else is dreading the advent of copyrighted CDs [cnet.com] which are already here, SACDs, and DVD-As?). At first this disgust led me to use Napster like a maniac, thinking (like many others did) that it would be a good way to combat the industry. Instead, I fear that it has gained the big labels sympathy within the legal system.

    So now I ask you. What other ways can we combat big labels and put the power back in the hands of the artist and the consumer, while still getting the music that we love? I'm very interested in hearing every suggestion possible. Currently I can think of the following.

    Buy From Independant Labels

    Buy used CDs (I love my local used CD shop :D)

    Write a letter to 'the industry'???
    Does anyone know of other avenues to these goals? Is there some sort of organization that people like myself can support to help remedy the situation?

    Please if you know anything...let us know!

    • Re:Things we can do? (Score:4, Interesting)

      by Catbeller (118204) on Thursday October 11, 2001 @01:43PM (#2416256) Homepage
      Sharing programs are legal. They may be held illegal now, but they can't be illegal, or Fair Use and our whole lifestyle is illegal.

      I'll stick with the Constitution as it was established. Rich corps will buy laws forever, but: copyright should expire after 20 years, I should be able to copy and share media I own, and I should be able to make Fair Use of quotations and media clips.

      The deal originally was that artists get copy rights for their work for a set period of time, in order to promote art and create content, in exchange for that period being limited, so that the artists' work would become part of the public life forever, enriching and advancing civilization.

      If this deal is broken by assigning artists' rights to immortal corporations, and making the copyrights eternal, than I disregard the deal until my rights under the contract are restored. Anything else is slavery to the powerful.

      • Re:Things we can do? (Score:2, Interesting)

        by beowulf_26 (512332)
        I don't dispute one bit that sharing programs are legal. The debate in my mind lies over the general use of the program. Previously I said, "...specific 'free music' programs are illegal."

        That should have read something to the effect of,

        "sharing programs that allow a disproportionate amount of piracy are illegal."

        Think of it this way, you own a dance club on a college campus. That is a perfectly legal and legitamate business. However, your club becomes liable if it is being misused (copious illegal drug use/distribution or serving minors alcohol are good examples.) It's the responsibility of you, the owner to police such action and take appropriate measures.

        Napster did not do this. While their foundation may have been completely legitamate, it was perverted into something else. It became a place where illegal activity was no longer the exception but became the rule. So bad in fact, preventative measures were not adequate as evidenced by the complete failure of their 'filtering system'.

        Thus, in what was it's old incarnation, Napster is indeed an illegal file sharing program.
  • by A_Non_Moose (413034) on Thursday October 11, 2001 @01:27PM (#2416167) Homepage Journal
    Pot calling the kettle black..
    no, napster was never in control.

    Horse of a different color?
    No, .com vs established monopoly.

    Shoe's on the other foot?
    Kinda.

    The shoe's on the horse's other foot for calling the kettle black?
    Yeah, uh-huh.

    Remember kids, only you can prevent metafires.

    score: +1 interesting, +1 funny +3 dumbass.
    {laff...snort}

    Moose.
  • by Anonymous Coward
    Is that "Napstar Lives" will join "Amiga Lives" as a commonly occuring topic on Slashdot...perhaps new ghost icons should be chosen from these back from the dead-like stories....

  • This [slashdot.org] Slashdot story from July 2000 lays it all out. This is exactly the strategy he described.

    The idea that Judge Patel is going to blow the record companies out of the water is tantalizing. And her reference to "massive discovery" must make the record executive's blood run cold.

    Well, colder.

    Do any of the US readers here know the limits of her mandate to look into things like artist's contracts?

To understand a program you must become both the machine and the program.

Working...