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Music Media

Boies: Music Industry Could Lose Copyright 239

Posted by michael from the napster-newz dept.
Nightspore writes: "David Boies, the lawyer recently seen cleaning Microsoft's clock for the DOJ is going to bat for Napster, and he is bringing a curious bit of law with him. It seems that if one uses enforcement of a copyright in an anti-competitive fashion -- which Napster says it has documents proving members of the RIAA cartel have done -- you lose your ability to legally enforce that copyright . Oops! More here." You can read the actual brief in pdf format as well. Boies lays out all his arguments on page three...
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Boies: Music Industry Could Lose Copyright More

Boies: Music Industry Could Lose Copyright

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  • The same law now protecting Napster is the same one that protected Diamond Multimedia in 1992. But then why can't my Rio send the songs BACK to the computer? Because then it's considered a copyright violation, because the data is being reused.
  • Seconded. This 'Open Source Man' doesn't exactly inspire confidence. Let's see some proof.

    Really, no shit.

    -nme!
  • reason FF7A the DMCA is unconstitutional.

    --

  • It's illegal in the EU as well: most recent judgements have involved car manufacturers restricting cross-border purchases

    Mark Austin

  • Interestingly, fairly professional movie equipment is becoming increasingly cheaper. I personally got a device called "Dazzle" for $200, that allows me to convert video to high quality MPEGs and edit them. The results are actually pretty good, so I would not be surprised if we soon saw more "home made" music videos and movies, just like we now SEE more of the home made music at MP3.com.

    Computers are also getting more powerful, so special effects can also be created cheaply by "anyone". The bottom line here is that with a $10k budget (including purchase of all the equipment you need), you and your friends could actually make a really great film in your spare time.

    Yes, I'm working on one.

    WRT Matrix II: On the IMDB, they used to list the Eaton Centre in Toronto as a filming location. They took this out, even though large parts of the Eaton Centre has been closed while they are building something "new and exciting" for quite a while now. And yes, here and there, you can see the same thick cables you usually see around movie production trucks.

    Speaking of movie production trucks, my room mate saw Keanu Reeves at the movie set at Bathurst and Bloor the other day. The trucks have been parked up along Bathurst for a couple of weeks now. And David Hasselhoff is filming something across the street from where my room mate works. Not many options on the 2000 releases at IMDB: http://us.imdb.com/Name?Hasselhoff,+David
  • What would be next? Movies? Certainly most of the major blockbusters that leave us ooohing and aaaahing would have a much more difficult time getting funded if protected distribution channels (yes, yes, for profit, no less) collapse? I want my Matrix sequels, goddammit!

    Why would the digital home recording act, a law about audio, have anything to do with moves? Also, it isn't as apperant that Movie studios act in the same, well, evil, way that the members of the RIAA do twoard video recordings.
  • 2) CDs are not non-degradable. After 10-15 years, they will degrade. After usage, they will get scratched and skip.

    You're off by an order of maginitude, CD's last 100 years, not 10. CD-Rs don't last as long if you don't keep them out of the sun.
  • the RIAA is an association of Corporations. It doesn't seem unlikely that they would structure it's command system in a similar manner to their own.

    We don't know how bad things are in north Korea, but here are some pictures of hungry children. -- CNN
  • from
    http://www.loc.gov/copyright/circs/ci rc1.html [loc.gov]

    WHAT IS COPYRIGHT?
    Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of original works of authorship including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following: To reproduce the work in copies or phonorecords; To prepare derivative works based upon the work; To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending; To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works; To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and In the case of sound recordings, to perform the work publicly by means of a digital audio transmission. In addition, certain authors of works of visual art have the rights of attribution and integrity as described in section 106A of the 1976 Copyright Act. For further information, request Circular 40,Copyright Registration for Works of the Visual Arts It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope. Sections 107 through 121 of the 1976 Copyright Act establish limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability. One major limitation is the doctrine of "fair use," which is given a statutory basis in section 107 of the 1976 Copyright Act. In other instances, the limitation takes the form of a "compulsory license" under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions. For further information about the limitations of any of these rights, consult the copyright law or write to the Copyright Office.

  • I have one final thing I want you to consider. Ladies and Gentlemen this is Chewbacca. Chewbacca is a Wookie from the planet Kashyyyk, but Chewbacca lives on the planet Endor. Now think about it, that does not make sense. Why would a wookie, an eight foot tall wookie, want to live on Endor with a bunch of two foot tall Ewoks? That does not make sense! But more importantly you have to ask yourself, what does this have to do with this case? Nothing. Ladies and Gentlemen it has nothing to do with this case! It does not make sense! Look at me, I'm a lawyer, defending a major internet corporation, and I'm talking about Chewbacca. Does that make sense? Ladies and Gentlemen, I am not making any sense. None of this makes sense. And so you have to remember when you're in that jury room deliberating and conjugating the emancipation proclomation, does it make sense? No! Ladies and Gentlemen of this supposed jury, it does not make sense! If Chewbacca lives on Endor you must acquit.
  • Precisely because of the weight of such a ruling.
    If it happened, it would torpedo the business model of a multi-billion-dollar industry. Even if a judge did hand down such a revolutionary ruling, the industry would just buy a law that nullified it before it got through the appeals process.

    The recording industry pimps are fighting for their lives and livelihood in a very real way; their very racket is based on this. Such a ruling would hit them as hard as the invention of nanoassemblers would hit De Beers' diamond prices.
  • i believe the RIAA is trying to get an amendment tacked on to the Copyright Act of 1979 stating that they, not the artists, own the copyrights.

    That is totaly, and completly wrong. They got that done months ago.

    We don't know how bad things are in north korea, but here are some pictures of hungry children. -- CNN

  • As frightening a possibility as it is, I take a certain level of comfort in knowing that if such a situation did arise (Napster becoming some kind of pay-per-play RIAA partner), damn near everyone would drop the service.

    I don't use Napster (or any other distributed trading network), but almost everyone I know has already made the switch to gnutella. Call it rats leaving a sinking ship, but I think the only thing Napster has in its future is setting a legal precedent. It doesn't matter whether that precedent is in its favor or not. Either way it goes, I don't forsee Napster existing say, five years from now.

  • Here in the United States the drug companies have to pay extortion to the FDA just to be allowed to market their products here. In Mexico there isn't a big building full of bureaucrats driving up the cost of marketing and developing drugs. The FDA is also the reason drugs take a year or more longer to be available in the US.

    Sharply cut back the authority of the FDA, allow the private media to keep a close eye on what the drug companies do (to keep 'em honest) and drug prices will fall.

    Of course, that isn't a very liberal thing for me to say. O0ps. Sorry.
  • If Napster prevails on the misuse front, do the RIAA copyrights fall into public domain? When they fix their misuse, do they revert to the copyright? What, then, of copies made during the frenzy that will certianly ensue?

    On p. 23 of the brief, lines 14-15, it says that showing that the RIAA was bad with their copyrights is

    ... an affirmative defense that bars the copyright holder from enforcing its copyright unless and until its misuse is cured.

    It sounds like nothing actually happens to the copyright, but the RIAA would have no right to enforce it until they made nice again.

    Greg

  • Wait until they have genome-based licensing enforcement. Then we might see cheaper Mexican-market drugs which only work for people whose genetic makeup is unlikely to be American, or dependent on markers in Mexican food/water, or neutralised by markers in American food/water, all in the name of profits...
  • That's chickenshit logic and everybody knows it.

    People who want to share copyrighted files over Napster should be required to specific permission from the content owner for each and every single transfer of that content. That means every time you request a download, you have to get permission from the content owner first.

    That's the same sort of logic that 'specific account, specific violation, delete account' games use.
  • I don't know if you could argue that the region coding is preventing competition since this is not preventing US competition, except perhaps by importers. Nevertheless, the copyright laws (At least I assume that the DMCA counts as a copyright law) are being used by the industry right now to stifle competition from the Open Source community.
  • Try setting max uploads to '0' and see what it says.
  • If you want to go produce movies, go produce movies. There's nothing holding you back from it. Buy a camera. Write a script. Hire some actors. Shoot your movie. Edit it down. Post it on a website somewhere. Promote it. There's no way the MPAA is interfereing with you creating movies. They just have more money than you.

    Same goes for music. If you want to start a band, go start a band. Buy some instruments. Write some songs. Rehearse. Play some shows. Record some CD's. Promote yourself.

    You might be confronted by some label people... here's the trick that most people here seem to have forgotten. You don't need to sign the contract they put in front of you. There's no guns to your head. Fuck the RIAA, you say? Then go at it on your own... It's really that easy for you, and for any other band.

    For all the complaints here, people forget that no one ever made the bands sign on with the major lables. They crawled over one another to sign the dotted line... They knew the consequences of their actions, yet they did it anyways....

    And for some reason $15 a CD is too expensive... 10 years ago tapes were $8.00. So, adjusting for inflation, a higher quality, non-degradable recording, $15 seems about right.
  • Could this mean the end of parallel import bans on a permanent basis (corps are lobying for NZ to put them back in). Even though corps say (almost) only priated material comes in via parallel, they only want it so they can keep their exclusive import licensing deals (though I suspect this is more the importers than the exports: exporters would normally want as many importers as possible).
  • How can the Napster say that the RIAA is acting anti-competitively? The RIAA is attempting to enforce existing copyright laws, of course, but! it has no product of its own that Napster is encroaching on. This law seems to be totally irrelevant to the whole case.

    --Remove SPAM from my address to mail me
  • ...and placing a code on the user's computer to prevent anyone from using that computer to access Napster

    Hm, Is it just me or is anybody else offended/appaled/experiencing any random negative emotion at the suggestion unauthorized registry changes that stick even after a program is uninstalled (And, as far as i know, uninstallation at least partly voids the liscence) are a Good Thing or at the very least, legal?

    IANAL, and i hadn't even read the liscence ( *gasp* ), but i'm still quite sure it's neither. After all, I do not think i've ever granted napster the right to commit any permanent action regarding my computer. Besides, this so-called protection scheme relies on napster users usually not being able to understand what exactly happened, partly due to Napster not notifying them that it changed their registry and, once they figured that out, to its sometimes rather cryptic nature (Just as MS intended it). I think this affair violates several of my rights, or perhaps even Microsoft's rights ;) (Who exactly owns my windows registry anyway?)

    And yes, perhaps I am beating a dead horse here, but something should be done about that as well. Recent discussions proved once again even organizations that benefit the community aren't immune to criticism (FSF), and perhaps even to harsher measures, may it be community pressure or legal action of some sort.

  • Your rio can send software back to the computer, and easily.. just not with the software you got from Diamond.

    As for the 'law' that protected them.. it was the fact that the DHRA (digital home recording act), when enacted by congress, *specifically* exempted PCs and their peripherals. It was designed to apply to consumer electronics *ONLY*.

    And the RIO does *not* record. It only stores digital data, and plays music back. It absolutely does not do any recording, whatseover. If you have a rio, and no computer.. you can't get any music into it. And as the DHRA, which enforces the serial copy protection system, does not apply and CAN NOT be applied to PC's, then it cannot be expected for the rio to also follow the serial-copy system, as the devices that feed it data do not follow them in the first place.

  • We already can. As the 'URL' link above indicates, I am. The trouble is that the RIAA member labels have spent immense amounts of money and energy arranging things so that:
    • they get the overwhelming bulk of the money from music sales
    • they tend to not pay musicians money, but rather 'prepay' by bringing the musicians to hugely expensive and elaborate music studios and mastering houses and charging these services against royalties
    • in so doing, they are able to throw a LOT of money into establishing a system where it appears that only major label acts are any good and the 'minor leaguers' don't seem worth listening to.
    Of course, it sometimes shows, for instance when all the pop hits are glossy and really 'professional' but there's no substance there at all- but on the whole it is remarkably effective, and only a 'geek' information sharing approach will help overcome this. People use mp3s like crazy, both in an authorized and unauthorised fashion. That means that it's now possible to GET 'independent' music into people's hands. At this point the ability of the music industry to establish itself as the source for 'professional' quality music is challenged- because it is possible to produce music with a 'polished veneer' that rivals or betters what the industry puts out, even with the money they can throw at it. You simply have to be an audio geek- and to really do it in a serious way you need to literally rebuild consumer level equipment to replace inadequate parts or those which are compromised by design (for instance, capacitors large enough to pass authoritative bass can be five times the price of 'acceptable' ones. Which ones do you think are in your pro-sumer level mixer?)

    As for the profit margins- it's a bit shocking. I will refer you to Steve Albini's "Some Of Your Friends Are Probably Already This Fucked" [arancidamoeba.com] for a look at typical band incomes assuming a _high_ level of CD sales and a successful tour, and another data point would be "Destroying The Artist's Right To Escape Contracts Through Bankruptcy" [opensecrets.org] which is a news article exploring a recent trend of multiplatinum artists attempting to get out of brutally unfair contracts because they are literally left bankrupt and owing large amounts of money (for instance, owing their real landlords money, as the landlord doesn't take payments in label-purchased studio time- the landlord would be wanting actual money, and the multiplatinum major label star may not ever see any actual money).

  • As for the last question ("How did the fans find out [about the music]"), by-and-large, the answer is that record companies pay radio stations and MTV to play their music when it first comes out. In effect, they plant a seed of interest in the minds of consumers. Then, after a while, the music companies stop paying for the music to be played, instead demanding payment when it is. But, at that point, the consumer interest is already there. Then, the music companies use their distribution systems to get the same music out to the stores.

    This method of advertising and distribution has been next to impossible for unsigned acts to accomplish. However, the internet & MP3s change all that -- suddenly, you don't need a massive distribution network, because the king of networks (the internet) does it for you. And, in a environment where people are well-connected, word-of-mouth becomes a much more effective method of getting known.

    So, you can see why the major labels are worried: their entire raison d'etre is being challenged by the internet: If you don't need a record company to do your advertising, and you don't need a record company to get your music to consumers, what's left for them to do?
  • Yeah I bought a cd burner for this reason, but I've not used it for 6 months. I switched from windows to linux and didn't even take the time to read the HOWTO about cd burning. I juste continue buying the CDs of artists I really like, just like I used to do

  • Who wrote the letters? (Score:3)

    by KFury ( 19522 ) on Monday July 03, 2000 @03:21PM (#960053) Homepage
    If the letters are from RIAA personnel, they're worthless. The RIAA doesn't hold any music copyrights.

    Each recording label would have to stand on its own, and the collective 'letters' couldn't be used against all of them. Only the letters from agents of that particular label. I don't think this'll end up holding up. This is why associations like the RIAA and MPAA exist.

    Kevin Fox
  • It says that the use of devices covered by the ahra for noncommercial copying is legitimate.

    The AHRA only applies to consumer electronics recording devices, and specifically exempts computers.
    It does not say in any way that 'all noncommercial copying is legal'.
    It simply says that the use of devices covered by the act for noncommercial purposes is completely legal.

  • No.
    The primary reason for stopping export was because encryption software is classified as a MUNITIION. So you needed the same license to export strong crypto as you did to export a tank or a box of ammunition, or an f-18.
  • Really, the key point here is about the nature of the copying, in practical terms. I just went to a convention selling stuff at an Artist's Alley table, had a great time and sold 14 audio tapes of my music for a buck each to get them in people's hands, and to not have to take them home again :) Now, to make those I had to buy tapes, to copy them tediously (technically I did them all off the computer at normal speed- no dubbing here) and make labels and all that stuff. It cost me energy and time and when I sold the tapes I no longer had them. If someone had sneakily grabbed one off the table I'd have been a bit disappointed (though at least it'd presumably be listened to) because I would no longer have that tape, and replacing it would cost me a buck or so, and some time and effort.

    By contrast, I have mp3s (at mp3.com/ChrisJ [mp3.com]). I could have them on my website but it would cost me too much to store hundreds of megs of mp3s :) the thing is, if someone sneakily goes and downloads one of them without paying me- well, actually they can't ;) because at the moment mp3.com essentially gives me a tiny cut of the ad revenue or something for each download, as an incentive. The actual formula is weird and strange and nobody knows quite how it's worked- I don't care ;) But the thing is, even if I didn't get paid anything at all for someone downloading mp3s (without paying), the mp3 is still there for other people to download it- AND is now in another person's hands to further redistribute, with another shot at being heard (which is life to music- it's useless unless it's being heard, it has no value when locked in a safe with a "$10,000" price of listening that nobody will pay. If the music is not in circulation being played and hummed and used, it is WORTHLESS...

    So the end result is that the 'worth' of an informational 'good' that is capable of being copied without loss of the original copy, for a trivial expenditure of computer electricity, becomes more accurately what people will pay for it. If it is a very GOOD informational good it will cause other associated goods (the other songs, the 'convenience' physical media audio CD for 5.99, the T-Shirt) to show higher value. So far we can't replicate T-Shirts, and if you want a cup of tea you cannot simply download it- the water and dried leaves and milk squirted out of a cow are physical objects that are transported in trucks and consumed. But the same rules can't apply with the computer information that CAN be copied without loss of the original copy.

    It breaks down into four basic categories in practice:

    • raw information that's unmetered. I paid nobody for the use of the word 'unmetered'. There is no expectation that I make micropayments to the person who coined the term 'unmetered' in speech. This is a type of 'good' that is considered utterly beyond considerations of being limited artificially for economic gain.
    • raw information that's unmetered by agreement. I write some software and GPL it. I give my own music away on mp3 and some people still reward that by buying 'convenience copies' of the CD- I brought some to my convention and sold almost every one for $10 (and you can buy them online for $5.99!) ALL because of convenience. People wanted some nice music for the ride home- $10 sounded great to them, in one case even without listening to the music at all, only hearing a description. At the same time, as copyrightholder it's my privilege to let people download the music, or copy and alter the software code, for nothing. At this level it starts becoming my business to make that decision- so far.
    • raw information that is metered by agreement. Patents for ideas, digital audio, songs- there are many things that do not follow the rules for physical objects as far as reproduction and distribution goes, but are still being treated as physical objects by societal agreement.
    • Physical objects- if you take it I don't have it, if I want it I have to go out and get it and drag it home and find a place to put it. I don't know many people arguing that you should be able to go and take a car or pile of bricks or pizza, and walk off with it without paying. All those things are the extensions of other physical objects altered and built with physical effort, and if you buy them the seller has to in turn go and buy more materials and make more.
    I think it is very likely that in the future the second and third categories will merge- they already completely blur. It's my belief that only category 2 makes sense- 3 is a mistake because it is inequitable- it is basically demanding money for nothing, because the seller is not 'out' anything tangible, yet they are demanding something tangible in exchange. It would be more sensible for the seller to demand something else _intangible_ in exchange- for instance, if you download something like that for free, in exchange you must allow the seller to download one of _your_ downloadable things- or to use your download to persuade potential site-advertisers to buy ad space, or something. There will have to be a loosening of the current expectations- the expectation that there are only producers and consumers, and that the only thing the consumer has of value is money. Perhaps it might become popular to have the consumer offer OPINION in exchange for free downloads...
    If you want to download this song, please click one of these buttons: "I like music that is- (lively) (mellow) (intelligent) (danceable) (etc) (CowboyNeal)"
    That would be a marketplace of intangibles exchanged for intangibles, and would make a lot more sense than attempting to exchange intangibles for micropayments (tangible, but you're not supposed to notice until your bank account runs dry and you're bouncing checks).
  • *g* Listen to you. "I want my Matrix sequels, goddammit!" Well... how much would you pay? Certainly a lot more than you'd pay for some nifty little video clip [airwindows.com] I did in my spare time- and that is precisely the point, isn't it?

    I don't think the Wachowski Brothers have anything to worry about. How much would you personally give them to do more Matrix sequels? Would you help get them set up with a Beowulf Cluster (tm) to do more EFX shots? Would you drop $50 on a "I Sponsored Matrix 2" t-shirt? Would you let them use the spare cycles of your Pentium MCXXIII in some future SETI-esque super distributed arrangement to render frames of the film? Would you _pay_ them so you could literally say "I helped _render_ that movie!" and one-up your geeky friends? ;)

    People are always saying that the loss of IP would mean the obliteration of all big budget blockbuster media. I don't think that's a sensible conclusion. You'd end up with an awfully big vacuum waiting to be filled- and a lot of creators who'd be able to do it given the resources- and an awful lot of fluidity regarding how those people could get the resources.

  • When you download a file from someone else's computer with Napster, there is no expectation that you will return the favor and upload something back.

    I disagree with this part. While there is no mechanism to prevent you from just taking songs, there is an implicit agreement that you are making your songs available. Most users consider it unfair and pointless to just take.

  • Re:Boies Sums It Up (Score:4)

    by laertes ( 4218 ) on Monday July 03, 2000 @09:44PM (#960059) Homepage
    I don't think you quite get it. If you had skimmed beyond the first couple of pages, and not just copied the first bullet pointed list, you might have emerged with an understanding of the laws involved. In the paragraph directly under the list you copied and pasted, there is the legal precedent for the sixth point.

    Sony v. Connectix and Nintendo v. Galoob are two cases where the especially weak sixth point is substantiated. In order to issue an injuction, the Plaintiff (RIAA) must show that they are being irreparably injured. Nintendo v. Galoob in particular puts more of a burden on the Plaintiff to receive an injuction.

    Further adding weight to Napster's side, the last point especially, is the next paragraph. They refer to testimony by the RIAA's own expert witnesses that sales have increased since Napster's inception. Sound damning? It only dives weight to the last point only. I find your comment about the sixth point being weak with so much case history backing it up. Also, maybe you should check a law textbook: you might need to refresh your memory with the definition of an injunction.

    For more info on point no. three, see pages 9-17. Basically, if there is only one possible legitimate use for a product, then it does not infringe on copyright law. This includes products which are advertised as having copyright circumvention capabilities.

    The fifth point seems the weakest, prima facie. However, an understanding of the actual claim made by Napster, and not just the summary, would possibly illuminate you. They claim that the directory of MP3s is what is covered by the first amendment. See pages 29-29.

    Note to Self: do not emulate TheGreek. Write original content in Slashdot posts. Read the actual documents before commenting on them.

    PS: You wrote 492 charachters. The text you coppied verbatim came out at 1171 charachters. That's about 42% your content. I try to shoot for more like 97%+ original content.

  • Have sales increased? Yes. However, that doesn't say much. Wether the increase of sales has increased (acceleration) is more interesting, and even that is not really showing much either. Numbers today are not numbers tomorrow. People relying on statistics instead of common sense shoot themselves and others in the foot.

    - Steeltoe
  • The only possible way that a new format can ever work is if it is superior, in the public's opinion, to the current format. At the moment this means MP3, because it gives good quality sound and good compression for storage. Most people don't want much more out of a music format than good quality and good compression, and until something comes out that can rival MP3 in this then it just won't last.
  • I would argue that they *are* using it for anti-competitive means. Putting music piracy aside, Napster is in *direct* competition with the current method of selling music. It is a way to distribute music, as are CD's and tapes. The fact that people use Napster to pirate music is irrelevant..

    Look at their profits, I dont think the mainstream music companies give too shits about Napster... People have always pirated music in one way or another. I believe this is just a smoke-screen to cover up the fact that they are shitting their pants that such a forum exists, because it means one day a lot of bands are gonna get sick of being screwed in the ass by these guys and are gonna do business online... The big bosses are scared of cheap, effective delivery mechanisms that put the bulk of the $$$s in the pockets of the artists.


    Simon
  • If it happens. But is it realy a good thing?

  • I think manufacturers of boats should be brought to justice and imprisoned for their blatant facilitation of piracy. Especially those who make speedboats.

    There hardly goes one week where you cannot read stories in the newspaper about how pirates attack shipping around the world, especially in southeast Asia. Invariably they use fast speedboats to get to the ships, which they climb during the night, proceeding to rob, beat and murder the crew. They get away using the same speedboats.

    Oh, the manufacturers claim that speedboats have legitimate uses. Ha! Dont believe them! Only pirates and drug smugglers use them. They should be outlawed!

    Come to think of it, the pirates use guns too in their crimes. Outlaw guns! And peg legs. And eye patches...


  • Oh god... napster are going to get away with it aren't they? "Look at the monkey". "Chewbacca is a wookie!"
  • Truth is, average people just disregard the laws, its civil disobediance in its finest

    Mob rule and disregard for the law is NOT what civil disobedience is about. Expediently commiting illegal acts for ones own personal benefit is NOT civil disobedience. Civil disobedience is a public refusal to comply with laws that you feel are unjust. Basically, if you illegaly copy MS Office and then turn yourself into the Microsoft piracy hotline, that is civil disobedience.

    The truth is that the warez crowd are anything but public. Rather, they are anonymous and secretive.

  • Boies Sums It Up (Score:4)

    by TheGreek ( 2403 ) on Monday July 03, 2000 @03:26PM (#960077)
    These bullet points from the third page of the PDF(marked as page 2) basically sum the case up:
    • Under the Diamond decision and the AHRA, consumers have an absolute right to create and transfer digital music for noncommercial purposes; since its users are not directly infringing, Napster cannot be held liable for contributory infringement.
    • Napster's directory service is capable of numerous and substantial non-infringing uses and thus under the Supreme Court's decision in Sony, Napster has no liability.
    • Because Napster users use Napster in a variety of ways that constitute "fair use," such as space shifting and sampling, no injunction can issue.
    • Plaintiffs have engaged in copyright misuse, which precludes enforcement of their copyrights against Napster.
    • No injunction can issue because it would violate the First Amendment rights to free speech of Napster and its user.
    • Finally, no injunction can issue because to do so would irrevocably alter the status quo, result in permanent injury to Napster, and ultimately not benefit Plaintiffs.

    It seems that while the third, fifth, and sixth points are pretty weak (the fifth and sixth ones especially), the first, second, and fourth (two of which mention legal precedents) are especially damning.

    This is one of the few legal briefs that I have read that have actually made me smile and chuckle with delight. Nice work, Boies. :)

  • Of Course, None Of This Matters (Score:5)

    by Seumas ( 6865 ) on Monday July 03, 2000 @03:28PM (#960078)
    Thanks to the DMCA, none of this matters. You don't actually have to be infringing on any copyright to be accused of it. Being accused is enough to force you to remove said content until a resolution is reached.

    This spurs me to a question regarding a post I made awhile back regarding copyright and Universal Records which contacted me and wanted me to remove an auction in which one of my users were apparently selling bootlegged material of GodSmack.

    The question is, where would my responsibility fall as this legal precedent stands now? Where would it fall after it is upheld or denied? Furthermore, what responsibility befalls me (and others in my position) with a mix of the DMCA binding and this law? They seem to lend to contradiction of one another.

    Any ideas would be welcomed. Thanks.
    ---
    seumas.com

  • Boies' brief is an impressive tour de force of legal advocacy. The legal crux of his argument is NOT copyright misuse (whether because of antitrust or generic equitable bases), which is legally a longshot, or even the claim that the ARHA permits private copying. It is the following, prosaic legal argument, mentioned several times in past threads on the subject:

    (1) Napster doesn't copy anything itself directly, so it is not guilty of copyright infringement.

    (2) The Napster architecture is capable of substantial noninfringing uses, and thus under the Supreme Court Sony Betamax case, there can be no contributory infringement, to wit:

    (a) consumers can use napster to "space-shift" (apparently the relativistic equivalent of Sony's time-shifting) works for which they have already purchased copies (supported by ARHA on policy grounds as fair use, even if not a direct defense);

    (b) consumers can use napster to "try-before-you-buy," another variant of time-shifting; and

    (c) individuals can use napster to obtain access to works of artists who consent to the distribution, including big guys sick of dealing with "standard" record terms and little guys who can't get a record deal.

    Since these guys don't infringe, Napster can't be guilty of contributing to their infringement. Since a substantial number are doing (1), (2) or (3) [At least 10-20%, even if you take RIAA's expert surveys], the Supreme Court says no infringement.

    Judgment for the Defendants, Plaintiffs take nothing and go without day.

    The crux of this is that it is an unattractive argument -- very legalistic, and inviting factual distinctions from Sony. Boies recognized that this intellectually solid legal argument doesn't "move" an impartial or unconvinced party.

    Thus, the thrust of the brief is to talk about POLICY. The beauty of the argument is that it shifts the moral high ground -- turning the "Evil Pirate against Poor Artists" argument into one of "Big Bad Business beats up on its Own Consumers, screwing the Artists as it goes, and threatening the Internet and the First Amendment along the way."

    For that Boies scores high marks. He makes the legal case, and goes on to point out the nastiness and contradictory conduct of RIAA to date. But at the heart and sole of this is the legal peg for the judge to hang her hat once she "sees the policy"

    I have read lots of briefs. This is a beautiful piece of work. It is a subtle one that hides the strategy even as it executes it with precision. Note how it states beautifully the case we made in this very forum, but without the histrionics, and therefore with much greater power and persuasive force.

    It's a beautiful piece of work that made me regret a bit, for the first time in months, that I gave up computer law in favor of actually building software.
  • In Jamaica we have copyright laws. These laws are generally ignored with respect to music. Stalls on the street openly peddle bootleg casets and CDs.

    This is Jamaica I'm talking about. We put more songs on the US charts than any other foreign country. We have more music producers and recording studios per square mile than anywhere else on earth. The all-time most prolific artist was a Jamaican ( Denis Brown with approximately 128 unique albums and no complete count of singles. He died last year and was buried in hero's circle. Even he never had a complete collection of his recordings. That's hard when you started singing before Bob Marley released as many as 4 albums a year. )

    Ohh and speaking of Bob. Album of the Century ( Legend ), Anthem of the Century ( One Love ) and Recording Artist of the century.

    Before you even take size into consideration we produce more music than any other country except maybe the US and the jury is still out on that one.

    Piracy is a scapegoat held up to confuse young artists who aren't seeing any money from all the hard work.
  • Apologies. The Church and governments (often the same thing in those days) in Catholic countries put into effect a licensing system for all printing presses, and issued strict guidelines on what works could and couldn't be reprinted using the movable-type press. As a result, Protestant countries, particularly the liberal Netherlands, became the hubs for most publishing ventures early on, since they had the fewest restrictions and the lightest regulation.

    The effect was similar. The most "valuable" documents to the pre-Gutenberg producers of books were precisely those books for which the Church had enjoyed a monopoly on the distribution.
  • Just as there were legal moves made to ban use of the movable-type printing press early on to protect the interests of scribes, here we're seeing the record industry try to use courts to artificially preserve a business and distribution model that flourished because the means of easy one-to-one distribution of music was inconvenient, expensive and difficult.

    The broadband internet in general, and specialized peer-to-peer sharing tools like Napster are an incremental innovation, but a crucial one, just as the addition of movable type to the printing press was.

    The notion of sales and replay royalties for recorded music is a relatively new one, dating back only to the piano roll and the gramophone in the second half of the 19th century. Before that, composers were paid lump sums for writing a new piece on commission, for performing, and in a few cases, for sales of sheet music. And this is what it will revert to: not a pay-per-download model, not a micropayment model, but no payment at all for recorded material. Not because people are selfish and have no respect for musicians and composers, but because the old means of enforecement--the inconvenience and high cost of copying--are vanishing.

    The question is not whether the argument Boies is making here on behalf of Napster is going to win out, but when it will win out. The courts and the world's governments may try to preserve the status quo by law, but it's an unnatural state of affairs and will prove unenforceable within a matter of years.

    Next to fall this way will be video as the price of bandwitdth and storage of peer-to-peer distributed video continues to drop. And finally, with the advent of personal binding technology and near-paper-quality flat screens and other display technology, we'll also see the end of enforceable copyright on print materials. The latter has had a respectable run of nearly 400 years, but this has only been because the quality of duplicates has been poor and the cost has been high. Once that's no longer the case--and it's just a few years away--so will go the last vestiges of the current print, sound and video revenue models.
  • Not so sorry to say I don't care about music as an industry. I feel about it exactly as I do about the current US Federal laws requiring some percentage (1%? 3%?) of a federal project's budget be devoted to art. Art springs from artists not to industry.

    The demise of the music industry leaves me in rapture. Corporate art, art industry, all the same, a huge bloated oxymoron of no relevance to art.

    --
  • Could these be considerds an abuse of the copyright? They are some of the most absurd things i;ve evenr encoutnered - we have to write a rules checker at myplay.com

    For example.... it is specified that internet broadcasters cannot 'play a piece of music at a time requested by a user or within one hour of receving such a request' - this leads me to a cunning plan.

    If everyone on /. requests all the tracks they don't like - e.g. everythign by the backstreet boys and britney spears. And spams every mail address at internet stations with these requests then they *won't* be able to play any of these. Leaving their broadcasting time free for good music like 'The Who' or this Fine selection of dance music [myplay.com] which I've put together.

    Plus there's the album sequencing rules which can tend to stifle creativity.... all this ends up doing is forcing people to change the names in their advertised playlists and no longer giving the real artists credit..

    But if you want real proof the these rules are a load of bollocks - go on napster and search for 'Essential Mix' - you'll probably get a load of radio shows recorded from good old FM radio. Why bother recording from low quality, encrypted streams when it's jst as easy to get someone in the UK to record it for you....

  • http://slashdot.org/comm ents.pl?sid=00/06/14/1336234&cid=7 [slashdot.org]

    "Oh dear God, can you imagine the anticompetitive, anticonsumer, antirecording, pro government manipulation("go bribe that senator with a junket") style messages that fly around the RIAA?"

    Looks like I'm about to find out, eh?

    Yours Truly,

    Dan Kaminsky
    DoxPara Research
    http://www.doxpara.com

  • No they don't facilitate piracy (Score:3)

    by A nonymous Coward ( 7548 ) on Monday July 03, 2000 @06:16PM (#960114)
    The brief makes it clear that non-commercial copying of music for friends, even if it might prevent a purchase by that friend, is explicitly authorized by the Home Recording Act. You can make tapes and give them away; that is non-commercial and explicitly authorized.

    It is NOT piracy.

    --
  • I was just thinking of that- the PDF talks about how 'copyrught misuse may be found based on attempts to use legal proceedings to extend a copyright improperly'...

    Would this apply to:

    An action that tries to impede fair use?

    An attempt to enforce a provision in a shrink/click wrap license which is unenforceable? (w/o ucita) For anti-reverse engineering clauses such as with decss?

    The MS Kerberos extensions specificatins file.

    How far would the copyright misuse defense reach? If MegaCorp was suing me for infringement, can I show misuse on an unrelated copyright as part of my defense, of would it need to be on the specific copyright on which the suit is being filed?

    More on topic,

    If Napster prevails on the misuse front, do the RIAA copyrights fall into public domain? When they fix their misuse, do they revert to the copyright? What, then, of copies made during the frenzy that will certianly ensue?



    Surfing the net and other cliches...
  • True, but making your files available to be downloaded is not trading. When I use Napster, 99% of the time I don't download from the people who download from me, and vice versa. Due to the sheer number of users there, this is standard.

  • Re:Napster (Score:3)

    by Antipop ( 180137 ) on Monday July 03, 2000 @06:34PM (#960126) Homepage
    I don't have a problem parting with $12.

    I don't either. The problem comes in when you listen to an alternative style of music from what they play on the radio. The radio stations here are horrible. We have 5 stations that play only teeny bopper pop. No rock, no metal, and sure as hell no techno or anything else that qualifies as good music, IMHO. Yeah, sure, I can go down to the local CD shop that carries stuff I like and buy a few CDs, but the truth is that prices are so bad I can't afford to.

    It sickens me to walk past the pop Britney Spears, Nsync, etc. CDs that are $12 and then to browse through the techno section and see nothing under $25. I don't know why they're marked up so much, but it is totally unreasonable for me to pay that much for an artist I have never heard. The only way for me to find new music is to download MP3s off Napster. Do I buy all the CDs I download off Napster? No. Do I buy CDs that I wouldn't have if I hadn't heard the MP3s first? Yes. Is the RIAA getting more money from me because I download MP3s? Yes, most definitely.

    What really scares me is the kids at school. Everyone who has a computer has Napster, and most of them burners. Remember, these are the kids who are flunking out of the "Computer Literacy" class that teaches what a mouse, hard drive, and floppy is. These kids don't give a damn thing about the artist getting money. Most of the kids will get the latest pop CD off Napster, burn a few copies and sell them to the kids at school for $5. The parents encourage them (!) and the kids use the money to buy more blank CDRs to make more CDs to sell, and it goes on and on.

    When I point out that what they're doing is illegal, they don't believe me. They really don't believe me. They don't see anything wrong with downloading MP3s and selling someone elses work. Would Napster have become as popular as it has if the RIAA had put commercials on MTV telling kids that downloading MP3s was illegal? Maybe not.

    The funny thing was when 3/4ths the kids at school got banned from Napster by Metallica or Dr. Dre. Then it was my turn to make some money and sell registry patches that got them back on =).

    -Antipop
  • For all you students, I've got it mirrored here [dhs.org]. Get it before my bandwith all goes away :)

  • You ought to read more carefully (Score:3)

    by bridgette ( 35800 ) on Monday July 03, 2000 @03:41PM (#960131)
    Using your argument Napster could say that since the RIAA "has no product of its own that Napster is encroaching on" there is nothing to sue for, no damages and no liability - case dismissed.

    The fact is: the RIAA is acting on behalf of its members, who are record companies that claim to be loosing revenue due to Napster's facilitation of copyright infringement.

    They aren't saying that the RIAA is acting anti-competitively, if you read that anywhere it is a inaccurate attempt to paraphrase the legal argument.

    They are saying that certain *members* of the RIAA were acting anti-cometitivly and it seems that the US Federal Trade Commission would agree with them on that since they recently settled with 5 major record companies on charges of price fixing.

    If the major record labels have used their copyrights to violate anti-trust law, then they loose the right to enforce those copyrights and so Napster can't be held libel for losses due to violation of those copyrights. If the copyright holder has no enforcement right, then any organization acting on thier behalf (RIAA) looses enforcement rights as well.

    So the RIAA could continue to sue, but if this argument is accepted by the court, thier damages wouldn't incude any of the 5 major labels copyrights.

    This law doesn't addresss 2 major areas:
    1) anyone other that the 5 major labels (i.e. indies)
    2) Anything the "Big 5" copyrighted after they settled with the FTC - assuming that they are using the CD pricefixing issue as the antitrust activity (I'd guess that one could find other examples of anti-trust violations in the major labels - but IANAL).
  • In generale totally right. But if each record company gives the RIAA power of attorney in some matter then they would all be responsible for the RIAA's behavoir in that matter.

    So if each record company agreed to let the RIAA negotiate advertising subsidies with record stores, then RIAA staff communication on that matter could have been used in the FTC case.

    If you hire someone to negotiate for you and they threaten to break the other guy's kneecaps, it would be a good idea to get a lawer.

    But Napster might have evidence from each major label.

    Since the RIAA has to comunicate with each of it's members, it's possible that a search if the RIAA offices would turn up letters recieved form it's members, records of what the RIAA sent to these members and possibly minutes of meetings between the members.

    They might even demonstrate that the RIAA is used for some sort of anti-trust collusion? How is it that 5 different companies all arrived at the same CD price fixing scheme? There are a lot of possibilities, but since they are all RIAA members, perhaps they all discussed it at an RIAA meeting?
  • After reading the brief, I can see where the RIAA will try to discredit Boies' assertions:

    Boies claims that the RIAA is afraid that technology like Napster will open the channel to independent artists who are not signed with the big labels. He says that the RIAA is using their limited monopoly, granted by the copyright, to guarantee control over the music market.

    If what he says is truen, then this would be contrary to the purpose of the copyright to protect and proliferate art, music and literature for the benefit of society. Thus, the copyrights would be nullified. So far, this is correct.

    However, Boies' difficulty will be in convincing the court of the RIAA's intent. His claim is mostly speculation, and he will need solid evidence to make it fly.

    The RIAA only has to show the statistics: virtually no unsigned artists are benefitting from Napster. At least, not in comparison to the huge volume of commercial music distributed by the major labels. And Boies himself claims that only 2% of artists are signed. Therefore, by the RIAA's stats, his particular assertion about controlling the means of distribution is unfounded.

    These statistics, the RIAA will suggest, indicate that most people are in fact taking advantage of Napster for getting published music without paying for it. If the statistics are big enough, they might find it easy to claim significant damages. Even Boies admits that this would be one circumstance in which Napster would find itself liable as a 3rd party, even though it isn't in direct violation of copyright.

    I doubt that the "radio" arguments that I sometimes read will hold up in court; probably they won't even be attempted. Recording tunes off the radio does not even come close to the choice, convenience, quality, and completeness that Napster provides when sharing MP3s.

    If those 98% of all musicians out there even made a dint in the Napster traffic, then maybe Boies' would have a good argument. Otherwise, it just looks like the primary use for Napster is not as a medium for small artists to push their stuff, but rather as a way for people to acquire quality music of their choice from the big label artists for free. Too bad for the little guys, because Napster might have really made a difference.
  • The vast majority of money that musicianss receive now is through live performances and merchandise sales. The only reason they're stuck with the RIAA is that it's hard to go on tour when no one's heard your music. If the RIAA's role in marketing music is removed, they no longer exist. Remember, even without copyright protection, the RIAA has inertia on its side. All the record companies and middlemen aren't going to disappear overnight; they'll be replaced gradually by whatever successful model emerges.

  • Re:So since region coding == anti-competitive.... (Score:3)

    by TheGreek ( 2403 ) on Monday July 03, 2000 @04:07PM (#960138)
    If i remember from my economics class correctly, being able to divide and name a price for a given market based on how much they are able to pay is textbook monopolistic behavior.

    Not quite. Being able to divide and name a price for a given market based on how much they are able to pay is just a sign that you can provide multiple prices for different types of users (Regular vs. Academic, for example), and shouldn't be (and isn't) illegal for just that reason, as it's good for the consumers as well. Academic pricng and volume discounts are quite good for consumers.

    Microsoft, however, charged OEMs a different price based not on ability to pay, but one based on how much the other company pissed them off.

  • The best part about that is in Canada we have a little surcharge on every recordable CD. That money goes to the RIAA (or whatever the Canadian branch of it is), just in case you use that CD to pirate their music.

    Because I'm already subsidizing the RIAA for pirating, does that mean its justified?

  • .
    DISC IANAL,BMGIALS

    Okay... IANAL we know... I'm guessing BMGIALS is "But My Girlfriend Is A Legal [Student|Secretary]".

    So, did she have any input, or are you claiming legal knowledge works through osmosis? :)

    --
    Evan

  • That's chickenshit logic and everybody knows it.

    Nope. That's the way our legal system works.

    People who want to share copyrighted files over Napster should be required to specific permission from the content owner for each and every single transfer of that content.

    Wrong, and just plain stupid. That's like saying that everyone who tapes a tv show must request and receive permission first. Like saying that I must ask before I can make a copy of a cd that i own so that I can keep it in my car and it won't be a great loss if it gets all scratched up.

    We have "fair use" for a reason. It's because copyright holders were never meant to have absolute control over the works that they've copyrighted. That's where the music industry has screwed up. They've been trying to expand their power and control for years. It would be nice to see them finally get stepped on.

  • Sorry - since the invention of the reel-to-reel, private music trading is and has always been about trading copies. Ask any Grateful Dead or Black Crowes "taper." They record concerts, and trade copies of those concerts for copies of concerts that they didn't attend, or couldn't record.

    The only real change over the years has been the recording technology. Each successive generation has had access to more and more user-freindly media and equipment, making the practice of private trading accessible to more and more people. And the people who make the most profit from commercial distribution have screamed bloody murder at the introduction of each new enabling technology.

    Same old $hit, different platform.

  • Fine. How does someone even know who the copyright holder even is for something? How would they go about proving it to Napster? How about something that's in the public domain (and how does one prove it)? And what about something covered by, say, the GPL?

    The burden of proof is on the copyright holder to determine that a violation occurred (in the US, at any rate). Period.
  • I doubt it. IIUIC, that's what patents are for (the anti-competetiveness). Howerver, that doesn't mean there's some other (related) argument that can be applied to patents.

  • Even Courtney comes to the conclusion that a new way is needed. She doesn't think the record companies are going to go away anytime soon, and they are still needed in some ways, but perhaps something will come along to give the artist some more power instead of them having to sign over the rights to their creations forever in return for some chance of making a living at what they do (but more likely just earning them a lot of debt). (and don't give me any BS about them not *having* to sign anything... if they aren't already huge and they want to get their album distributed, then they don't get a choice.)

  • Re:That is going to hurt (Score:5)

    by acidrain ( 35064 ) on Monday July 03, 2000 @03:44PM (#960165)
    Yes this is a very good thing. Allow me to quote the pdf file:
    ...17,000 artists who expressly approve of sharing music through Napster; by contrast, the major labels released only a totla of 2,600 albums last year, and only 150 of those songs were played on the radio on a regular basis...
    My point is that the big labels have a strangle hold on the artists and listening public. They are lining thier pockets while the average consumer is exposed to only a small fraction of the potential amount of music that could be made available to them. The big labels also keep most of the profits derived from the artists work, and only very sucsessful artists can make much money at all. Will this mean more music for the consumer, and more money for the artist? Yes. The big 5 are just scared shitless that they will lose thier middleman position and wan't us to belive that non-traditional means of distribution are wrong.

  • Politics (Score:3)

    by Signal 11 ( 7608 ) on Monday July 03, 2000 @03:45PM (#960166)
    Umm, it isn't "near-political", the RIAA as a whole is extremelly political. Do some digging on opensecrets.org for a certain Hilary B. Rosen which, if you didn't know, is the CEO of the RIAA. Before she got the job as CEO she was clearing almost 700k/yr. I'll bet that number is higher now. But the kicker is how much she spends of her personal money on PAC contributions. Let me give you a hint: it's more than some nerd in Redmond.
  • I wonder if David Boies' new-found fame is allowing him to start taking higher-profile cases? It certainly stands to reason.

    Nope.

    Boies has been famous since before many here were born, and always has had his pick of high profile cases. He does Antitrust, he does First Amendment, he does copyright, lots of other things.

    Basically, what he does is pick challenging, seemingly unwinnable cases. And then he (usually) wins them.

  • In Australia the Australian Competition and Consumer Commission (very powerful government agency) said inr esponse to the Microsoft ruling that the ruling had destroyed the notion that Intellectual Property could be used to justify anti-competitive practice.. click here for the media release [accc.gov.au]

    very few people noticed it in the broader hoo-ha.

  • . .around to hear it, does it make a sound?

    In the brick and morter distribution model there is millions spent each year to track who buys what CD when, where, and why. Big money (read:Billboard) is made from knowing about the distribution of music in the conventional model. This very same tracking data is hurting the RIAAs argument that CD sales have fallen.

    Indy artists do benifit from napster, it's just that nobody knows about it.

    Only recently [slashdot.org] has there been a means to track who downloads what and when on file sharing networks. If an independant artist can prove that they distributed just 10 MP3s a month, it would help Boies and his case considerably.
    ___


  • ...use this loophole to open up some M$ source code?

    I imagine Microsoft has crossed the same line in their various nefarious persuits.

    I know this is a weak possibility, so maybe someone more familiar with microsoft history and/or the law could comment?

    :)Fudboy
  • And is she a woman yet? Last i looked she was a little girl ;-)

    Anyway - you can use this same technique to request everyone except britney spears and force a radio station to go all britney
  • My shallow understanding is that if you use copyright enforcement to violate anti-trust law then you'd loose all rights to defend that copyright in any way forever-and-ever. If that's the case then Napster only has to show that anti-trust law was broken at some point in the past. They wouldn't have to show the current suit against Napster is anti-competative (which would be really had to do).

    But maybe I'm missing something?

    BTW ... Kittie got a writeup recently for using mp3.com to get on the billbard charts.

  • Re:Oops - now and then. (Score:4)

    by Signal 11 ( 7608 ) on Monday July 03, 2000 @04:20PM (#960181)
    The only reason they're stuck with the RIAA is that it's hard to go on tour when no one's heard your music.

    And how was the RIAA formed? How did the RIAA find out about that musicians music? How did the fans find out about them?

    Answer: Word of mouth.

    What's the single best technology ever invented for rapid peer-to-peer communication (word of mouth), as evidenced by the hundreds of e-mails with the letters FW: or FWD: in the subject line?

    I rest my case, your honor.

  • What portion of Napster users have modems? I dare you to try to download a whole CD's worth of MP3 files over a modem using Napster. Go ahead, try it. Let me know how much hair you tear out during this process.

    Until we all get broadband access, Napster is and will remain primarily a sampling service. (What happens after that is a different universe.)

  • would people opt out of paying their taxes for the same reason. They'd all start filing the 1040EZ saying they made $15K, while the rest of their income is hidden by anonymous digital cash transactions.

    Interesting. But, have you read www.paynoincometax.com [paynoincometax.com] yet?

    Perhaps the government would have to go to a sales tax

    They are ethically obligated to do this anyway. Regardless of the questionable legality of an income tax, it's morally repulsive. I should not have to report my income to Big Brother. They have no business knowing what I'm doing, or how much I'm paid for it, as long as I'm not hurting anyone.

  • DISC IANAL,BMGIALS

    ...an affirmative defense that bars the copyright holder from enforcing its copyright unless and until its misuse is cured.

    Which sounds to me like there would be an infringement grace period.

    Say I m infringing, and I win a suit against me on misuse.... After the misuse is cured, they can't sue me again, right?

    I understand the affirmative defence concept- like pleading guilt by temporary insanity or He Needed Killin'... But if a court ruled that misuse was going on, and I'm not related to the case in which that was shown, can't I then infringe freely with the knowledge that the (C) can't be enforced?

    chris

    Surfing the net and other cliches...

  • I think this is a good point..... (Score:3)

    by Averye0 ( 194295 ) on Monday July 03, 2000 @03:06PM (#960194)
    ...especially where the lawyer points out the previous case involving Betamax VCRs. Napster has many, perfectly legal uses. Uses that even involve copyrighted music. Napster should not be held responsible for the actions of its users any more than ISP's should be held responsible for theirs!
  • Jamaican Artists make a lot more money in Jamaica than artists do in any other small market ( 2.7 Million ).

    The pirated music dosn't cut into record sales as a hit song in Jamaica generaly sells more copys than a hit in the US ( reletive to market size ). The truth is that those who buy ligitimate copys of music will do so regardless of the cheap copys.

    BTW: Everyone but the realy hot platnum sellers like Whitny Huston makes most if not all there money off concerts. Bootleg salles have never cut into concert sales and never will.

    Except in the case of an artist where bootlegs of his concert performance sucked so much nobody wanted to pay for a live performance.
  • Can you think of any software publishers who have used copyright for anti-competitive purposes? ;-)
  • It can still be civil disobeience when people will not be going to jail. It's a much more relaxed form of civil disobedeance which says "these are unjust laws, so lets make it people's habit to break the law, then they wil change the law."

    i.e. The people writing Gnutella, Freenet, and maybe Napster could be to be engaging in civil disobedeance. The users who encurage their friends to use these programs or put up lots of stuf so that people will like the programs may be engaging in civil disobedeance, but they guy who just logs on to Napster to DL a file is not really ngaging in civil disobedeance.

  • Napster (Score:3)

    by linuxonceleron ( 87032 ) on Monday July 03, 2000 @03:07PM (#960203) Homepage
    While its obvious that napster is aiding the piracy of music, it seems that most people JUST DON'T CARE. Every average teenager who I talk to uses napster, even ones who aren't tech-savy to say the least (I'm talking AOLers here). When it comes to music that someone recomends to me, I'll fire up napster and get a few songs, if its good, often I will actually buy the CD. Truth is, average people just disregard the laws, its civil disobediance in its finest. BTW, I just bought A Decade Of Steely Dan, its great, and when the music is good enough, I don't have a problem parting with $12.

  • Oops - now and then. (Score:4)

    by DrPsycho ( 13308 ) on Monday July 03, 2000 @03:07PM (#960206) Homepage
    This would certainly put a major wrinkle into the plans of the RIAA, to say the very least. I'm forced to chuckle at the awful irony of the organization - who has been thumping lawbooks and screaming cries of legality - being halted by an obscure piece of legal trivia.

    Many will herald it as a major victory for freedom lovers everywhere if Napster is successful in its defense. But think for a moment. The music industry at present is fuelled by large amount of cash. Sure, much of it is corporate gluttony, but can you imagine what would happen to music as an industry if musical copyright went flying right out the window?

    It's forseeable that one can put together decent quality musical recordings on a slim budget. But what about promotions, tours, music videos, movie soundtracks, and everything else that makes the music industry hum while sating consumer appetites? Will any appreciable portion of the music we know and love continue on without the "protection" of copyright?

    What would be next? Movies? Certainly most of the major blockbusters that leave us ooohing and aaaahing would have a much more difficult time getting funded if protected distribution channels (yes, yes, for profit, no less) collapse? I want my Matrix sequels, goddammit!

    I strongly doubt anyone would revoke musical copyright en masse, via. these legal chicken scratchings or otherwise. But it does throw a nice monkey wrench into things. Perhaps this will force both sides to be more reasonable with regard to their near-political stance on the issue.

  • the nature of the monkey. (Score:4)

    by mcc ( 14761 ) <amcclure@purdue.edu> on Tuesday July 04, 2000 @05:32AM (#960211) Homepage
    no no no you've got it backward.

    The monkey is "piracy".

    The idea behind an SP-style "chewbacca defense" is to locate something that easily appeals without a lot of thinking. Something that can be easily grasped, and that makes you happy to think about because it lets you easily look at the problems in terms of right/wrong. Take a complex, multifaceted issue, and insert one simple word: PIRACY. suddenly The DeCSS Hackers Are Wrong. The MPAA Is Right. Simple, Black and White, not a painful, important decision. It's not a difficult, painful issue with many sides, it's about Copyright Piracy, and Piracy is simple, and Piracy is something that they have seen on the news and that can be easily morally justified and that the plaintiff has repeated over and over often enough the jury can believe it's true.

    Or, if you want a far, far more powerful word for your monkey: Children. Imply that Children are being "hurt" by one side or the other, and no matter how rediculous your justification for claiming this, no matter how tenuous your support for yuour side, no matter how valid the other side may be.. the other side is GONE. See Also "columbine".

    Monopolistic tendancies of huge labels harming independant, little artists and enabling the labels to rape and screw over even signed artists do NOT make a good monkey. (try looking up sometime that essay by the guy who produced the Pixies [i think?] on how most apparently successful artists are actually deep, deep in debt to the record companies because of contract complications, and the whole Letter of Intent thing..) They can't be that easily grasped, they force you to actually (*gasp*) re-evaluate some of your assumptions about those bands you're hearing on the radio, and they may even force you to look at your mighty god 104.1 KRBE, Today's Modern Hits! as something that maybe doesn't, at heart, care that much about music.
    Most importantly, thinking about the true nature of the music industry as a parasite on an art form requires, well, THINKING, which defeats the entire purpose of the monkey in the first place. The point of the chewbacca defence is to keep the jury from thinking; give them something nice and happy to distract them, like The MPAA Is Stopping Piracy or The Christian Right Is Protecting Children, so that they don't actually think about the issue deeply enough to realize it's something with more than one side, something in which the side with the more valid concerns may actually not be the most obvious one.. Making the jury think is counterproductive, and besides, people don't like to think.

    Basically, in this case it's easier to think about the music companies' monkey than Boies' monkey. And while the music companies' monkey may be a bit more relevant, Boies' monkey is far, far more valid.
  • Copyrights are always for individual works. Though past works may lose their copyright, future ones will not.

    How could movie distribution channels collapse? It would take alot more than the total revocation of all copyright protection to close down the theaters and the contracts they sign with the movie companies.

  • do people read articles before posting? (Score:4)

    by Greg_Girty ( 90984 ) on Monday July 03, 2000 @03:54PM (#960214)
    After doing something many posters have not--READING SOME OF THE ARTICLE, I learned a new fact:

    When individuals are trade music privately, and on a one-to-one basis, it (legally) is not piracy.

    This makes the case much more intersting for armchair layers like myself. (It's like chess, but sometimes with teams, and opponents must do research.)

    Napster obviously facilitates trading of copyrighted material. The question is, can the interaction be considered private, as it occurs with public listings? And is it considered non-profit after Napster began advertising for profit?

    It could be that Napster the corporation may be found liable. But if that happens, individuals will continue to legally trade music online in private, one-to-one transactions. They may do it on _free_ FTP, (screw you allAdvantage whores,) or on a decentralized napster clone. But they will do it.

    In fact, maybe "Napter guilty" won't be a bad verdict. Since it has been established that individual trading is lawfull, let us legally encourage _distributed_ information sharing, and another step of evolution in the information age.

  • Re:So since region coding == anti-competitive.... (Score:5)

    by SlushDot ( 182874 ) on Monday July 03, 2000 @03:55PM (#960216)
    (2) DVD region coding is anti-competitive.

    Whoah there, Cowboy! Not so fast! You'll have to explain that one further. How is DVD region encoding anti-competitive?

    Since I'm an anime nut, I see this a lot.

    For DVDs that get released across multiple regions, THEY ARE NOT THE SAME. Extra footage [Battle Athletes], bonus scenes [Yougen Kaisha], running commentaries, removed credits [pretty much anything on DVD], hard subtitles I can't get rid of [Utena], lack of original language track [Disney's Mononoke] and outright edits of movies [Sailor Moon], etc., are made between different region's versions.

    Yet I am officially [*] BLOCKED from buying a product from another region because that product would COMPETE with the local one.

    If that's not anti-competitive, what is?

    [*] Of course, I bought a hacked DVD player to get around this, but still want to see an end to region coding because it is unfair and anti-competitive. Audio CDs are universal. I see no harm resulting from import sales.

  • Ok... maybe some rock fans may think that 'Sandstorm' is just noise and drum machines...

    But this record got a distrubter in teh UK and it managed to get to number 2 after it was found on a music sharing service...

    Of course - the record industry don';t like club culture - they can't control what records will be huge.

  • Trading Music is now Commercial Gain! (Score:4)

    by burris ( 122191 ) on Monday July 03, 2000 @04:24PM (#960219)
    Please be aware that federal law was amended in the Digital Millenium Copyright Act to change the definition of "commercial gain." Commercial gain is now also "the distribution of copyrighted sound recordings in expectation of receipt of other copyrighted sound recordings."

    The powers that be got this language in to stop people that were actively trading music but not selling it. If you give someone a recording in expectation that they will send you a different one in return, then that is now considered commercial gain.

    This may or may not affect Napster. When you download a file from someone else's computer with Napster, there is no expectation that you will return the favor and upload something back. In fact, you can't do that at all. The protocol is one-way.

    Just something to think about.

    Burris

  • IANAL...

    Actually, on page 33 of the .pdf (marked 32) Napster is claming that they fall under the "safe harbor" section of the DMCA. The reasons they site are:

    - General knowledge of possible infrigment doesn't count.
    - Monitoring is not required.
    - They have informed users that alleged infringer's accounts will be terminated.
    - The have terminated the accounts of alleged infringers upon proper notice.

    From that it would seem that if you want to protect yourself, all you need to do is post a warning that you can terminate auctions and boot any users you get complaints about. This of course has the possibility of screwing your users since it only has to be _alleged_ infringment.
  • "what about promotions, tours, music videos, movie soundtracks, and everything else that makes the music industry hum while sating consumer appetites?"

    I think there's a whole lot of bloat in the current music promotion business, and we certainly don't need the RIAA's help to push things along. Take a look at this article by Steve Albini [slab.org], in which he describes the crap that the labels make a typical band go through to get to "the top." Note especially the itemized accounting at the bottom, showing how all the label fees end up ultimately *costing the band money*, rather than making them rich as they origianlly hoped.

    Then consider a band like Fugazi, which has managed to do extremely well without this label crap for going on 15 years. They print their own albums, organize their own tours, etc -- and I suspect they're doing a hell of a lot better than some of their major label collegues. And I sure as hell have a lot more respect for them than most major label bands.

    The comparison to the movies isn't exactly accurate. Any bum with three chords and an attitude can put out a decent rock album (hey, just look at anyone from the Ramones to Green Day). More money mainly translates into fancier equipment, more beer, and 18" models of Stonehenge on stage -- none of which necessarily does anything to increase the quality of the show. Especially the Stonehenge thing. Look at the Fugazis, the Ani DiFrancos, etc that are recording their own music and doing their own tours on less than a shoestring budget, yet are making a decent living in the process. Then consider how rare this is in movies, even in the indie/arthouse friendly climate today. "Blair Witch Project" was a huge anomaly: most movies are extremely expensive to produce, market, and distribute. It's out of reach for most people, but any high school kid can start up a band.

    And to come back to the matter of copyright, I don't think it's the major issue with the Fugazi's and Ani DiFranco's of the world. They make their living by touring, mainly, and while their albums sell at very respectable rates, it is the live performances that are bringing them recognition and financial reward. I'm certainly not the first to point out that in a "post copyright" world, it will be the act of creation, and not the product of it, that will bring one rewards. It's an old tradition, going back through the Grateful Dead and their bootleggers and even, say, Shakespeare and his plays -- he didn't make his fortune off the scripts, but the performances. Everything old is new again...



  • As the brief pointed out, once Napster is made aware of a specific account with a specific copyright violation, that account is terminated.
  • It's interesting that copyright could be used in a way totally contrary to it's original intentions.

    Personally, I think a loss of all of their current copyrights would force them to actually be *creative* in their choice of works to publish (and bring some material into the public domain, which hasn't happened except by willing release for the past who knows how many years). Maybe this will give them that kick in the pants they need to stop shoveling us this crap they have been.

    It'll be interesting to watch. They should sell courtside tickets.

    --
    I have a certification! It's called Insanity(tm)!

  • Civil Disobedience (Score:3)

    by e7 ( 117450 ) on Monday July 03, 2000 @03:13PM (#960237) Homepage Journal
    Just a reality check on the scope here. Is it civil disobedience? Or just selectively ignoring the law?

    I usually think of civil disobedience whenever people are willing to risk being beaten, imprisoned, burned at the stake, etc. for cherished religious and political liberties.

    Now while there are really important free-speech issues involved in the case, the 'right' to sample music before purchasing doesn't really fall into the same category as what Gandhi and M.L.King were fighting for. I seriously doubt most Napster users are prepared to go to jail over this.

  • Re:Devil's Advocate (Score:3)

    by ToLu the Happy Furby ( 63586 ) on Monday July 03, 2000 @08:34PM (#960244)
    If those 98% of all musicians out there even made a dint in the Napster traffic, then maybe Boies' would have a good argument. Otherwise, it just looks like the primary use for Napster is not as a medium for small artists to push their stuff, but rather as a way for people to acquire quality music of their choice from the big label artists for free. Too bad for the little guys, because Napster might have really made a difference.

    If you read the brief all the way through, you'd find that the RIAA's own survey of files shared on Napster found that only 87% had names which corresponded to RIAA signed artists. In other words, 13% of Napster traffic is clearly non-infringing--more than just "a dint", if you ask me!

    But even that doesn't include cases when those 87% of files with "infringing" names are actually of live recordings, etc., which bands often expressly allow to be redistributed and whose copyrights certainly don't belong to the RIAA labels in any case. Looks like that dint is even bigger.

    Furthermore, it doesn't matter if all the traffic on Napster consisted entirely of Britney Spears and N'Sync; it still doesn't infringe copyright law if the way it is used falls under fair use provisions. Examples of ways one might use download an RIAA-copyrighted song off Napster for Constitutionally protected fair use include:

    1) "Previewing" a song/album by downloading the MP3 and listening to it before decided whether it's worth getting gouged $18 for the CD. According to a survey, 91% of Napster users engage in this particular form of fair use.

    2) "Space-shifting," the practice of downloading a song/album one already bought in CD/tape/vinyl/8-track format so that one can listen to it on one's computer/on one's Rio/at work/etc.

    But I saved the best for last:

    3) "Noncommercial use"--that is, downloading any song without paying the person you got it from in either money or some quid pro quo trade. Interestingly enough, this fair use was expressly granted, for all time and with regards to all future technologies which might crop up, in the Audio Home Recording Act of a few years back. Yes, this does in fact mean that almost any conceivable use of Napster is non-infringing and completely legal. Indeed, it means that all music-sharing over the Internet is completely legal, except for ratio sites and must-click-on-banner-ad sites. (No, this fair use does not extend to warezing software, only music; however, contrary to popular belief, however, it does extend to both digital and analog music recordings). Thus your dint is now fully 100% of all Napster traffic!!

    But wait: there's more. It turns out that by the standard set up by many previous cases (amongst them the Sony Betamax case) it doesn't even matter how big or small the dint is. The only thing that matters is that Napster is "capable of substantial noninfringing uses." That's not just a quotation from the brief (page 8; page 9 of the PDF), but a direct quotation from the Supreme Court decision in the Sony case! (Emphasis added by Boies and kept by me.)

    So after all this gnashing of teeth on /. over the previous months about the degree to which Napster is actually used to trade unsigned artists' recordings, it turns out that it doesn't matter one single bit. All that matters is that Napster is capable of it!

    And furthermore, the standard for what is "substantial" is not "substantial in comparison to Napster's overall traffic" but rather "substantial in comparison to the ability for unsigned artists to distribute their work without Napster."

    In other words, it's sort of ironic that you ended your pessimistic comment with the statement "Too bad for the little guys, because Napster might have really made a difference," because according to the standard set by previous cases, that's precisely all that's needed!

    If you really, as you stated, read through the entire brief, I suggest you read it again. You might be pleasantly surprised at how utterly it demolishes the RIAA's case.
  • Interestingly enough, American drug companies also price their wares by country and region. This is why the exact same prescription medicine, from the exact same factory, can cost something like 1/4 as much in Mexico as it does in the U.S.

    It's the same principle as the DVD regions, but it's being applied to products that are, to my mind, just slightly more important than movies.

    - Robin

  • Aren't the new Rios modified to close this loophole? Supposedly that's part of the "SDMI compliant" tag they wear.

  • Er..I don't know about the States, but here in the UK that's exactly the case. Nobody ever does, but it's still the law. Still plain stupid though.

    Well, here in the states, you don't have to get permission. That's why the previous poster's statement was so completely wrong. Copyright holder's aren't supposed to have that much power or control.

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