Posted on 12/30/2002 5:11:11 PM PST by Drippy
It would seem to me that you are buying a license to play any cut on the disk at any time you choose and as many times as you want as long as only one instance of the cut is playing at a given time.
One can easily loan a disk to another to play. My use of the disk is obviously limited if it is physically somewhere else. Enter technology. Now we can share a cut with others without surrendering the physical disk.
I have lot's of CDs where I rarely, if ever, play many of the cuts. Why shouldn't I be able to share with others as long as only one instance is being used at a time?
Hence the need for the file sharing technology to have a sharing cookie arrangement be attached to the file such that only one instance of a licensed cut be played at a given time. End of legal problem. Still death to the record industry.
Can you walk us through the case and the arguments you're making?
Sure. There are four basic issues, and the recording industry has to win on each of them in order to prevail. If Napster wins on any one of the four, Napster prevails. The first issue is: Are Napster's users engaged in copyright infringement? If they are not, that's the end of the matter, because nobody alleges that Napster directly infringes any copyright. Napster's only alleged liability is for contributory or vicarious infringement. You cannot have contributory or vicarious infringement without having some underlying infringement. So when Napster's users engage in noncommercial sharing of music - noncommercial copying of music - is that activity copyright infringement?
We say it is not, for two basic reasons. The first is that this kind of noncommercial consumer copying is recognized as fair use under common-law theories and doctrines, and under the Supreme Court's criteria. And second, with respect to audio recordings - that is, music - the Audio Home Recording Act directly says that noncommercial copying by consumers is lawful. The 9th Circuit, in RIAA v. Diamond Multimedia Systems, in 1999, read that statute as permitting all - and all is the word of the opinion - all noncommercial consumer copying as lawful.
The second issue?
The second issue is whether Napster can be held responsible if some users engage in copyright infringement. We maintain that Napster cannot be guilty of vicarious or contributory infringement, because the service unquestionably involves substantial noninfringing uses. In the 1984 decision in Sony v. Universal Studios, where the entertainment industry had tried to stamp out VCRs, the Supreme Court said that even though VCRs were predominantly used to copy copyrighted materials, because there were substantial uses that did not infringe copyrights - either because the material was not copyrighted or the copyright owner did not object - you could not find that Sony was guilty of contributory or vicarious infringement.
Now, the recording industry sometimes seems to argue that what matters is which use of the technology predominates. That has never been the law, and, indeed, in the Sony case, it was absolutely clear that more than 80 percent of the use was copyright infringement. So the issue is not, Which is the predominant use, but rather, Is there any substantial noninfringing use? And in fact, in Sony, the Supreme Court did not say there had to be any actual substantial noninfringing uses - it said that the technology merely had to be capable of substantial noninfringing uses.
One noninfringing use is space-shifting. [Music listeners space-shift when they copy songs they already own onto more portable media.] The 9th Circuit has held that space-shifting is clearly a noninfringing use, and both Napster's expert and the RIAA's expert say space-shifting is a very substantial use by Napster users.
Another noninfringing use is to distribute music that is either not copyrighted at all, or whose copyright has been lost, or whose copyright holder doesn't object, and that kind of music represents another use of the Napster system.
Yet another related use is sampling. Assume you've got copyrighted material, the copyright is valid, and the copyright holder has not given permission. Even under those circumstances, sampling has always been held to be a fair use. Now, there was some suggestion in the RIAA's court filings that sampling is not a fair use, which is not consistent with what the Supreme Court said in the Sony case. But even if sampling were not a fair use - and we think it is - certainly space-shifting, the sharing of uncopyrighted music, and the sharing of copyrighted music where permission has been granted all would be fair uses.
There's no question that these are already very substantial uses on the Napster system, and there's no question that these uses are growing. For example, when we put in our court filings, there were 15,000 to 17,000 artists who had expressly authorized Napster to permit its users to share their music. By the time we got to the hearing stage, it was more than 24,000. And it's over 25,000 today.
Issue number three?
The third point is the Digital Millennium Copyright Act, which we have argued that we are covered by, and which was specifically designed by Congress to give a safe harbor to Internet service providers so that they would not be held liable for their users' activities. The RIAA argues that if, as a general proposition, you know your users are engaging in some copyright infringement, you can't take advantage of the DMCA. But that can't be what the DMCA meant, because if you didn't know your users were doing it, you wouldn't have any liability anyway. The Digital Millennium Copyright Act was designed by Congress to say, "You know, service providers, even though you may have knowledge that some users are engaged in unlawful activity, that doesn't mean you have to monitor what each of your users is doing."
The DMCA also set up a notification procedure, through which service providers like Napster can say, "Look, if you believe somebody is infringing, you bring us a notice. We will then shut them down unless they give a counternotice. If they give a counternotice, it's up to the court to decide." And that system has worked with Napster. Hundreds of thousands of users have been terminated because of those notices. Congress set up a system. That system works.
OK. The fourth and final issue?
Copyright misuse. The 9th Circuit has made it clear that if copyright holders use their copyrights for anticompetitive purposes - to try to gain control over something they do not control directly through their copyrights - that's copyright misuse. It is clear that the RIAA has set out to control the Napster media. They have written documents saying they want to shut Napster down and then take over the technology. The RIAA's members are acting in concert. They have pooled, according to their own statistics, 90 percent of the copyrights on music. All of those kinds of activities constitute copyright misuse. And if they are engaged in copyright misuse, they cannot enforce their copyrights.
I know that song! That must be the 1965 hit by the Trade Winds! I punched it into WinMX and there it was. Try finding that in your record store!
Try digging up this chestnut "Echo Park" by Keith Barbour. I looked for this song for weeks and finally found it on WinMX. If I could get this on CD, I'd buy it in a heartbeat as it brings back many memories for me from when I was a kid and the Vietnam War was raging. It is a great song about a father who lost his son in that war.
But what's really going to piss the recording industry off is when satellite radio gets big.. and then someone makes one with a "save as" feature.
That's going to be the ultimate piracy device.
I had to read it twice too. Must have one helluva birth control program... Isn't Jolyn a girls name though???
Same here. My favorite radio station is WMBR at MIT in Boston. Click on the link and you can listen live. Don't go by what is playing right now though. They play all kinds of music at different times. Being from Texas, you might enjoy their Saturday morning programming. All country music, not the crap you hear on commercial country radio but lots of country classics, bluegrass, rockabilly, Americana, Tex-Mex, Cajun, zydeco, you name it. It's fabulous listening.
Interesting opinion for one who frequents a site that does just that. The articles reprinted here are also copyrighted and this site has already settled a suit in the matter.
Of course, I don't hold that it is stealing or unethical at all. I believe that Free Republic is making legitimate use of the "Fair Use" provision in copyright law that allows people to exchange copyrighted materials for disussion so long as they do not profit by it.
Well the people swapping MP3s aren't profiting by it either. And the file-traders could well be "discussing" the music amongst each other (which is why all these file-trading sites have chat capability).
Just as people can store and archive MP3s so that they don't have to buy the CDs, people can store and archive articles that are posted here so that they don't have to subscribe to the publications that publish them. One may argue that we are doing the more honorable thing here but it really boils down to the same thing. In both cases, copyrighted material is being disseminated.
Granted that most of the articles posted here are already available for free on the originating websites. But those websites depend on clicks to drive their advertising revenue. So we should get in the habit here of clicking the source URL for articles posted here so that the originating website gets a click. Losing the ability to read and discuss articles here will be a terrible thing. It will also be a terrible thing to lose the ability to sample the MP3s of music I am thinking of buying.
Those were the golden days of FM. Back in the 1960s and 70s you could turn on the radio and hear just about anything. I remember a commercial FM station around that time that would go from the Velvet Underground right into a Bach cantata. Then they'd play something by Hank Williams that would lead into something by George Thorogood. It was crazy! And I couldn't stop listening.
Commercial radio stations today are so rigidly programmed by anal-retentive program directors that it has become unlistenable.
Nonetheless, although Napster and all the others should not be banned, people who use them to get copyrighted music they don't already own are doing something illegal and unethical. Yes, the recording companies are greedy and stupid, and they ought to develop a different business model allowing songs to be legally downloaded more cheaply, but that is no justification.
This is not something that technology can fix. No matter how many layers of encryption there are, it will always be possible to intercept the bits at the very end of the process, just as they go into the speaker, a physical device. Nor will digital-to-analog conversion help, because the waveform can still be recaptured and re-digitized. The best you can do is make it cumbersome and difficult and make legal downloading cheap enough that very few people will want to get involved with illegal copying.
One thing that CAN be done -- only sell physical CDs to identifiable individuals (require a picture ID), and steganographically encrypt a serial number in the music. This can be done in a way that is basically impossible to remove without destroying the sound quality. That way, if a pirated copy DOES circulate, it will be possible to tell who bought the original. Pirates will still be able to get around this by stealing physical CDs, but this trick will significantly reduce the incidence of piracy even further.
I thought so; perhaps "he" is missing an s.
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