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Music Media

Napster Finally Gets a Break 240

Posted by CmdrTaco from the well-sorta-anyway dept.
jark writes "Wired News is reporting that 9th District Court Judge Marilyn Hall Patel ruled that the five major record labels must prove they own thousands of music copyrights as well as prove those copyrights were not used to monopolize and stifle the distribution of digital music. " Definitely a twist in this ongoing saga.
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Napster Finally Gets a Break More

Napster Finally Gets a Break

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  • Who cares? (Score:1, Interesting)

    by Inthewire ( 521207 )
    I mean, Mr. Fanning has a stake in this, and there's the Fair Use question, but Napster is DEAD. Supplanted. No longer important.
    • It's like claiming:
      Netscape is DEAD. Supplanted. No longer important.
      Be is DEAD. Supplanted. No longer important.
      OS/2 is DEAD. Supplanted. No longer important.

      Who cares about the Microsoft trial?

      • Re:What kind of logic is this? (Score:1, Insightful)

        by Anonymous Coward
        It's dead and unimportant because Napster will never return in any significant way. It's limited material, pay only, audio only. It may be important in a historical, nostalgic sense, but not in a practical "I wonder what will happen next?" sort of way. It'll be just like MusicPlay, and that other industry owned fee-based service that nobody cares about when it opens up.
        • it is important for 2 reasons.
          1, it gives napster ground to sue for damages, much like Be. This is a nearly identical misuse of a monopoly like in the micrsoft antitrust case.
          RIAA has been far more heinous then microsoft 'tho, they have been raping both consumers and the artists they claim to represent.

          2, this could actually move to give the rights to music back to the artists, opening market doors and oppurtunities to all the little guys.
          maybe we'll find some real services opening up that offer real music instead of the backstreet boy wannabes we have shoved down our throats on every public channel. maybe this will unhinge RIAA and halt their attempts to squash streaming audio sites (shoutcast radio stations), etc.

          but then what's the chance that could happen in the land of the dollar.
          my $0.02
      • All of your statements are true, so what are you saying?

        Be and OS/2 are both dead. Netscape is dwindling to the point that I don't see anybody using it in five years.

        Nope, don't give a shit about the trial. We can't win.... Miguel is right with his Mono project - if you can't beat them, join them.
        • I think the point is that justice must be done, even if it's too late to compensate the victim. Otherwise, what is to stop the perpetrator from doing the same thing again to the next company that comes along?
    • Your missing the point...

      This could break their copyright.

      If they can't prove they own the music or prove they didn't create an illegal monopoly with it, how can they sue ANYBODY for the use of "thier" music?
    • If a court decides that the record companies misused their copyrighted materials, they could technically lose those copyrights. Probably won't happen, but it would be so funny if it did...

  • Oh, I changed my mind!? (Score:3, Interesting)

    by Starship Trooper ( 523907 ) on Friday February 22, 2002 @08:23PM (#3055259) Homepage Journal
    Patel, who called both sides "dirty," said that Napster's misguided attempts to build a business using illegally obtained music paled in comparison to what could be massive misuse and heavy-handed tactics by the recording industry.

    Please tell me that the future of digital music on the Internet is not being decided by someone who is arbitrating the decision based on which side is more morally repugnant.

    What about applying old standards? Interpreting existing law to a new medium?

    Patel has not impressed me with her keen wit and insight. Sorry.
    • I think what's more interesting is from a legal standpoint Napster was not distributing music on the internet. Napster was allowing their servers to be used by people who were. I think it's very tricky law. I also don't think that one judge should be expected to make it. But alas, it's not my country's law.

    • Re:Oh, I changed my mind!? (Score:5, Insightful)

      by Cato the Elder ( 520133 ) on Friday February 22, 2002 @08:31PM (#3055291) Homepage
      Actually, the judge seems to be basing her decision on sound legal principles. The sentence you qoute suggests otherwise, but it was written by the reporter at Wired. The quote about both sides being "dirty" probably refers to the doctrine of "Unclean Hands" which basically states that you can't benefit in a civil suit from illegal actions. In other words, if the record industry has illegally claimed copyright of songs that actually belong to artists, then they can't claim damages.
      • I thought that it was bigger than that, that if they had used the copyrights to [create|maintain] a monopoly(?), that they could lose those copyrights.

        If that's true, what happens to those artists? Did they just totally screwed due to their labels? And if so, is that justice or justified?

        • Re:Oh, I changed my mind!? (Score:5, Informative)

          by RazzleFrog ( 537054 ) on Friday February 22, 2002 @08:59PM (#3055409)
          The argument that the Napster lawyers are making is that the labels don't actually hold the copyrights anyway since the artists were essentially working under contract as freelancers. If this is the case then the copyrights would revert back to the artists.
          • If this is the case then the copyrights would revert back to the artists.

            But what happens when the industry loses the copyrights? Unfortunately, and I hope this is not the case, artists could lose their corporate backing. All of a sudden, there is nobody around to pay for album production, tours, and promotion. Only the big-time artists could survive in the light of the general public, and we'd still be stuck with two choices: N'Sync and Brittany Spears. It's an interesting situation, and like I said, I *really* hope that doesn't happen :)

        • Re:Oh, I changed my mind!? (Score:4, Interesting)

          by sporktoast ( 246027 ) on Saturday February 23, 2002 @12:40AM (#3055933) Homepage

          I thought that it was bigger than that, that if they had used the copyrights to [create|maintain] a monopoly(?), that they could lose those copyrights.
          That would be kind of silly, seeing as how copyright is a monopoly (as granted by the government). The "bigger" part would be whether or not they abused that monopoly.

          The issues here seems to hinge on two questions:

          1) Do the labels really hold the copyrights for the works, as they claim?

          If the works were NOT for hire, then the monopoly priviledges remain with the authors, and the labels' case suddenly has no ground.

          2) Have the labels engaged in anti-competitive practices by refusing to fairly license the works?

          This is an important issue and may help decide the outcome of the case. Unfortunately, I'm not clear as to whether this case can do anything about the labels' anti-competitive behavior. (Kinda like if a woman proves her husband is a child molester during a divorce suit, that only gets her the divorce and custody of the kids. Getting him arrested for pedophilia becomes a different legal matter.) I'm a little worried that if the details of the case head too far in this anti-competitive direction, that the labels will offer Napster a fat (and confidential) settlement to avoid setting any precedents or creating useful fodder for future cases.

    • Re:Oh, I changed my mind!? (Score:2, Informative)

      by Anonymous Coward
      "Patel has not impressed me with her keen wit and insight. Sorry."

      Patel has been a cluefuck all along, but lets not forget that she should've been ruling based on the LAW all along.

      But what we got is a judge who is very open about her *personal* feelings about Napster and found rules to support her gut feeling.

      She's exactly who shouldn't be a judge.

    • Re:Oh, I changed my mind!? (Score:5, Insightful)

      by danspalding ( 560127 ) <teachrdan@gmail.com> on Friday February 22, 2002 @08:57PM (#3055403) Homepage Journal
      When you read articles about court decisions, you have to remember that a reporter is quoting the two or three juicy sentences in dozens of pages of dry legal text.

      While Patel's logic, as quoted by Wired, might not impress you, you might want to check the full text of this decision.

      This is especially true of Supreme Court decisions, which usually have hundreds of pages of decisions from the majority and individual justices. The press makes them look like a single issue decides the case, but that's almost never true.

      Look past the flashy quotes, dude.

    • Her job is to decide the case. If what napster was doing was illigal, if what they were doing was agains the spirit of the law they should go down.
      • The thing is, if the RIAA members can't prove they own the copyrights in question, then RIAA can't be pursuing infringement proceedings because they do not represent the infringed parties. Since this is a civil case, you have to have the wronged parties or their representatives pursuing the case.

        Furthermore, there's this issue of the digital distribution service they turned on just right after Napster was effectively shut down. The only way you can license right at the moment, is through them. While nobody can be sure of misuse of monopoly position right at the moment and they may not be guilty thereof, it can very likely get proven in a court of law sufficient to meet the criteria of misuse and thereby opening up the opportunity to hold proceedings to strip all their member organizations of their copyrights.

  • Napster May Be Dead, but.. (Score:4, Insightful)

    by ackthpt ( 218170 ) on Friday February 22, 2002 @08:26PM (#3055272) Homepage Journal
    But this would go as well for any other music sharing service. So, it's not really a failure in that regard. Also, it's a loss for RIAA, which is enough to make me raise my voice in song. Let'em try to take that away.
    • I think what is going on with napster these days is basically irrelevant. The next generation of file swapping programs is in and they are decentralized. The RIAA will never be able to shut them down because of this, and while they might be able to buy over politicians, they will never be able to sway the public. The public will never want to give up the exhilirating freedom of file sharing information, and this will never happen.

      The RIAA has also horribly hurt their case by ripping off all the artists, who are the very ones that some people argue Napster and Morpheus and crew hurt. The artists get tiny fractions of pennies for their music on the music industry- sponsored services, who views musicians as pawns and servants.
    • ...which is enough to make me raise my voice in song. Let'em try to take that away.

      All music is owned by the RIAA. You may not sing without prior written consent, nor distribute a recording of your singing in any form. Please desist singing this instant in order to avoid a costly lawsuit.

  • suprised. (Score:3, Insightful)

    by www.sorehands.com ( 142825 ) on Friday February 22, 2002 @08:27PM (#3055274) Homepage
    I am suprised that the blank media 'tax' already paid for the music being copied on Napster argument has not been raised.

    • Re:suprised. (Score:3, Informative)

      by dougmc ( 70836 )
      Are you referring to the DAT Tax [brouhaha.com] that adds a tax to audio DATs and CDRs?

      If so, as much as I dislike this tax, then this isn't much of an argument. Very few mp3s end up on Audio CDRs, and even fewer on Audio DATs (unfortunately, as good as DATs are, they never really took off.) Why? Because, IF it's burned onto a CD at all, it's burned to Data CDs, which have no such tax. Audio CDRs cost several times as much as Data CDRs exactly because of this tax, therefore the only people who use them are typically those who must -- those who have audio burners (NOT computers!) that require them.

      I imagine that there's a few people who downloaded music with Napster and then played it via their sound card and then recorded that with an Audio CDR device, but this number is almost certainly dwarfed by those who burned it directly on their computer -- it's cheaper, uses more common hardware, and delivers better quality.

      • Re:suprised. (Score:3, Funny)

        by base3 ( 539820 )
        therefore the only people who use them are typically those who must -- those who have audio burners (NOT computers!) that require them.

        So they're really more of an "I didn't do my research and bought a product that is intentionally crippled" tax.

      • Let me dispel a few myths you seem to have. First of all, Data CD-Rs do have a tax on them, its just a smaller tax than the Audio CD-Rs. Secondly, there is absolutely no difference between Audio and Data CD-Rs. There is no device that requires Audio CD-Rs. Data CD-Rs work just fine in stand alone audio burners.
        • First of all, Data CD-Rs do have a tax on them, its just a smaller tax than the Audio CD-Rs.
          On some level, everything has a tax on it.

          However, I am unaware of any tax like the `DAT tax' that applies to Data CDRs. If you wish to convince me that such a tax also exists, you'll need to provide some references. I'm talking about the USA -- if you're talking about another country, then say so.

          I am aware that analog media (cassette tapes, vcr tapes, etc.) has no such taxes but that there are agreements between the media producers and the RIAA, MPAA, BMI or some similar organization so they get paid a certain amount per blank tape, so the net effect is the same as the `DAT tax'.

          Secondly, there is absolutely no difference between Audio and Data CD-Rs. There is no device that requires Audio CD-Rs. Data CD-Rs work just fine in stand alone audio burners.
          And this statement is totally false, as explained by another poster. There is no fundamental difference between Audio CDRs and Data CDRs -- except for a bit twiddled somewhere that says `This is an Audio CDR'. And many (most? all?) consumer grade audio CD recorders look for this bit, and won't work if it's not set. Sometimes you can disable this, or get around it (by switching disks in some models) but the difference IS there.
    • "Music" CDRs, the ones you need if you want to record on a music spesific CD-burner have a tax, but regular CDs you get for your computer don't (unless you live in canada).

  • It's all about the Benjamins (Score:5, Interesting)

    by aardwolf64 ( 160070 ) on Friday February 22, 2002 @08:28PM (#3055278) Homepage
    "prove those copyrights were not used to monopolize and stifle the distribution of digital music"

    I had problems understanding this phrase until I got to the second to last paragraph in the article:

    "Napster lawyers have alleged the record industry withheld their copyrights from digital music services until three of the major labels could launch MusicNet. Once that service was launched, just days after Napster was shut down, company could only obtain wildly restrictive licenses to sell music. "

    So THAT's what this is all about... The record industry isn't against digital music, they're against anyone besides themselves making use of it. If they had their way, I know of at least a few radio stations that would be shut down. Where does it end? Am I going to have to change to the Sony-owned radio channel to hear the latest music???

    • Re:It's all about the Benjamins (Score:1, Flamebait)

      by Anonymous Coward
      If you listen to half the morons on slashdot, they'll tell you "you have no right to listen to music, if sony wants to you fuck a goat to listen to music, that's their right".

      These people are consumers, not citizens.
    • The difference is that napster never tried to get licences before launching, Myplay spent their whole life in negotiations with record companies but rotted away.

      Shame - they were the best group of peopel I ever worked with.
    • If they had their way, I know of at least a few radio stations that would be shut down.

      Well they are [slashdot.org], and the entire digital music radio business is seriously compromised.

      DZM

    • The record industry isn't against digital music, they're against anyone besides themselves making use of it.

      Someone with moderator points mod that posting up. Use the No Shit Sherlock tag.

      --Balir
    • Am I going to have to change to the Sony-owned radio channel to hear the latest music???

      See, that's the problem. If the major labels and "content providers" (scroo you, a song is art, not "content". Even Britney is _bad_ art, the musical equivalent of "Dogs Playing Poker" painted on velvet, but not "content") run the whole show, then you won't be able to hear anything that they're not trying to pump at the moment. You really will be stuck listening to the Latest Music, whatever's hot for the next 10 minutes. In the night of your tortured soul, you'll go looking for Nick Cave, but all you'll find will be Creed...

  • Probably not good news (Score:3, Interesting)

    by Fair Use Guy ( 556967 ) on Friday February 22, 2002 @08:30PM (#3055284) Homepage Journal
    In one of my introductory law classes, the professor (a former trial lawyer) described a very tough judge he once had to deal with. In this case, he represented the plaintiff in a civil suit and the defendant's lawyer produced a steady stream of rather annoying objections to his lines of questioning. The judge sustained each and every one. The judge then proceeded to decide the case... in the plaintiff's favor.

    Why would the judge do this? Quite simply, the judge wanted the plaintiff to win, and wanted to keep the defendant from being able to appeal the decision. And if the judge sustained every single one of the defendant's objections, the defendant had no grounds for an appeal.

    That is what appears to be happening here. Judge Patel, a jurist who has most decidedly taken the side of the plaintiffs in the Napster case, wants to make her decision airtight. There's no way that Napster will be able to appeal the decision to the Supreme Court if she allows the defendants to explore every possible line of defense before they lose the case. It's about giving them a fair trial and letting them prove they are not liable - and when they are unable to prove they aren't liable (they really are liable under the DMCA, like it or not), she will return the verdict that puts them out of business forever.

    Not that Napster is an issue anymore, anyway. They have been supplanted by several services that are more resistant to legal and network attacks and do not attempt to extort a monthly fee out of their users for access to materials that they have a basic right to download anyway.

    Fair Use of the Day:

    WALLUP V 1.0 :1) Load the Game 2) quit to bring up the closing Soleau Software screen 3)Press the key 4) Enter name 5) Code: 6123$57
    MailCrypt Wizard 0.92 :name: Riz la+ s/n: MC-10-0-1421
    Cyberspace AddWeb v1.22 Standard :s/n: AW88-37D0W7A-72K8266
    FTP Voyager v3.0.1.6 :name/FX22 97 #/0000259a email/fx22@hotmail.com
    CDQuick cache v1.11 :name/Somebody key/C864


    /fug

    • Re:Probably not good news (Score:5, Interesting)

      by raresilk ( 100418 ) <{moc.cam} {ta} {kliserar}> on Friday February 22, 2002 @09:53PM (#3055585)
      Although you may be right about Judge Patel's motives, I disagree that her decision has any possibility of being "airtight." Fair use and antitrust issues in the electronic music distribution arena are too novel for any judge to presume that her decision could avoid review by a higher court.

    • Probably not good news (Score:5, Funny)

      by Wintersmute ( 557244 ) <Isaacwinter.hotmail@com> on Friday February 22, 2002 @10:54PM (#3055701) Homepage
      Judge Patel, a jurist who has most decidedly taken the side of the plaintiffs in the Napster case, wants to make her decision airtight. There's no way that Napster will be able to appeal the decision to the Supreme Court if she allows the defendants to explore every possible line of defense before they lose the case.

      I will join the long line of scholars, lawyers, and laymen who rightfully criticized the Napster opinions, not for their politics, but for their inartful application of an incompetently-drafted law. Judge Patel's previous opinions have been nothing for her (or, more likely, her law clerks) to be proud of.

      That being said, hearing such conspiracy-theories that a life-appointed judge is somehow "in the pocket" as opposed to just plain incompetent advanced by some, including those who claim to be law students, is nothing short of irresponsible.

      Not to mention incorrect. As some, including Mr. Fair Use Guy, have wrongly suggested, Patel seeks to insulate her opinions from Supreme Court appeal.

      One who claims to be a law student should know that Patel's decisions are appealed first to the Ninth Circuit, and then to the Supreme Court. And while the three-ring-circus-like Ninth Circuit is wholly unpredictable, capable of disputing ruling such as whether the sky is blue, the Supreme Court would not touch the over-litigated quagmire that is Napster with a ten-foot whatever - it not federalism, there's no circuit split, and there's not a damn interesting issue to be found in ten billion pages of pleadings.

      It will be a cold day in hell before the Supreme Court agrees to hear any of the Napster decisions. Jerry Falwell will smoke crack before the Court hears Napster. John Katz will write a useful article before the Court hears Napster. Microsoft will release WinXP on a GPL, disco will return, and someone will actually mod up one of my postings before the Supreme Court hears Napster.

      The Ninth Circuit is the end of line - and Patel can't do a damn thing to stop the Ninth Circuit from reviewing her - as they've proven themselves willing to review damn near everything. So ditch the conspiracy-theory crap, and recognize bad law when you see it.

      I commend unto you Hanlon's Razor: "Never attribute to malice that which can be adequately explained by stupidity."
      • Mr. Winter,

        I am not sure where you get your "facts" or your arrogant attitude, but the Napster case is most decidedly destined for the Supreme Court, not the Ninth Circuit as you have claimed. It is already in an appelate court; what would be gained by sending it to a court at the same level?

        I wholehartedly agree with you that the DMCA is bad law, but the fact remains that there is little the courts can do about Napster's end of the case. In MPAA v. 2600, we had the First Amendment working for us; in this case there is no establishment clause issue and constitutional arguments will get us nowhere.

        /fug

    • Idiot (Score:2, Offtopic)

      by spectecjr ( 31235 )
      So let's see, you're claiming fair use by posting a load of keys for shareware apps?

      Tell ya what, why don't you just go out and run through CompUSA, grabbing stuff off the shelves, and throwing it into the street shouting "It's FREE! It's FREE!"

      YOU do not have the right to do what you are attempting to do. Only the person who owns that software has the right to decide what they're going to charge for it. If you disagree, don't buy it. Don't be a stupid asshole instead.

      Oh, and by the way, I hope you and your family are condemned to work at an IHOP on the 2am shift for the rest of your lives.

      Simon
  • In most cases, the copyright to a song is held by the person who wrote it, not by the record company. But, except for a couple of jerkwads like Metallica and Dr. Dre, no musicians have filed copyright complaints against file sharing services.

    • my understanding of the matter is that the "artist" owns the rights to the song itself (i.e. the lyrics and notes and arrangement of them) but the record company owns the rights to the recording itself. that is, the copy that is on the cd. they are suing over the use of that particular recording because, in most cases, the files traded were ripped from CD recordings. if, however, it is a recorded live bootleg or something along those lines, the record company (to my knowledge) has no control over it.

    • This is because Metallica (through Creeping Death Music and E/M Ventures) actually own their own recordings, unlike most artists. I imagine Dre also owns his recent work (Death Row still owns his old material, IIRC).

      Interestingly enough, Metallica never sued to get Napster shut down and have, afaik, refused to provide any sort of brief for the RIAA against Napster. I get the impression that they merely wanted to see their studio material kept off. They never even asked to have live bootlegs banned.

    • The song - the lyrics, the melody, etc. - are copywrited by the writer, but the recording is copywrited by the performers, who must license the song from the writer. When you hear a disturbing elevator-music instrumental version of "Staying Alive", like I heard the other day while waiting on hold at work, whoever put that together only had to license the song everyone knows, not the recording everyone knows, and just record it themselves. Much cheaper that way.

  • interesting (Score:4, Interesting)

    by soap.xml ( 469053 ) <ryanNO@SPAMpcdominion.net> on Friday February 22, 2002 @08:31PM (#3055290) Homepage

    the article brings up some interesting points. although napster is currently pretty much dead in the water, it seems that the company may get some sort of compensation do to the anti-competative practices of the record lables.

    "MusicNet did not suddenly appear full blown from the head of a fictitious entity. The evidence suggests that plaintiffs formed a joint venture to distribute digital music and simultaneously refused to enter into individual licenses with competitors, effectively requiring competitors to use MusicNet as their source for digital licensing."

    granted, i am not a lawyer, but it would seem that napster would have some recourse if monopolistic/anit-competative practices could be proved, and napster may have a solid future (or others) in the pay-per-play area of online music...

    -ryan

    • Re:interesting (Score:3, Insightful)

      by sporktoast ( 246027 )
      [...]
      although napster is currently pretty much dead in the water, [...] but it would seem that napster would have some recourse if monopolistic/anit-competative practices could be proved, [...]

      I'm worried that those two things may be mutually exclusive. I don't think this case will provide anything more that the proof to support potential future recourse against anti-competitive practices. I don't think this case can give the labels the smackdown over their actions. I see it as either dead-in-the-water Napster achieves their proof of anti-competitive practices, but can't pursue if because of bankruptcy, or they get a fat cash settlement and a sweet (and undisclosed) licensing deal on the label's content in exchange for kiboshing the anti-competitive approach just before any real juicy details come to light.

  • Getting a break? (Score:1, Funny)

    by Anonymous Coward
    Getting a break? With napsters great new features like .nap files, limited downloads, charging for the service, no guarantee that you can find the music you want, *and* they tell me they're cooler than other so called "free" services .. how can they lose??

  • too late for napster (Score:3, Insightful)

    by I Want GNU! ( 556631 ) on Friday February 22, 2002 @08:32PM (#3055297) Homepage
    This is good news, but it is too late for Napster. The damage has been done to it, its effectiveness as a file sharing program has been taken away, and the users have moved on to other services such as Morhpeus, Kazaa, and Limewire. Fortunately, this next generation of file sharing programs is more decentralized, so even if the RIAA lobbies against them and sues them, there will be little they can do to stop them. Plus, Limewire and the Gnutella protocol are open source, so anyone could just take them and make changes in order to make them legal again if difficulties came up.

    Once information is out there, there is no going back, and no removing that information. The public is thirsty for these file sharing programs and knowledge of them will prevent the companies from stopping them forever, and when they do stop them new ones will come out. Eventually, even their corporate lobbying will be in vain, and buying politicians won't do anything to stop the flow of information.
    • What cracks me up is that the RIAA thinks that if they introduce their subscription services with their own secure file formats, that MP3 will magically disappear.

      They don't seem to understand that the cat is out of the bag and there's nothing they can do about it. Everybody and their mother has an MP3 decoder on their computer. It'll take a complete revamp of the entire industry to try to undo this. That would include getting rid of the CD format completely. Of course, as it has been proven numerous times, whatever they come up with will be cracked by somebody within the first few months.
      • I will note that since the heyday of Napster, the diversity of available files has gone down. More obscure/fringe acts aren't as available as they used to be, and this actually means a reduction in my CD buying patterns - previously, I had used Napster as a method of discovery for new and unusual music, often by browsing the collections of people who had music that I liked. I would say the RIAA had shot itself in the foot, except that they never represented those less mainstream acts to begin with: they just want to maximize the number of people who buy Brittney Spears and Garth Brooks CD's.
  • . . . for all intents and purposes, it does little harm for Judge Patel to render a sop in the form of a favorable decision towards Napster so it maybe isn't as obvious that she's a bought and paid-for, corrupt, corporate tool.

    • Comment removed (Score:5, Insightful)

      by account_deleted ( 4530225 ) on Friday February 22, 2002 @08:49PM (#3055378)
      Comment removed based on user account deletion
      • I don't think it'd come back very big. Any user with a significant degree of knowledge and desire to trade music is already using IRC or one of the next generation P2P networks, such as Gnutella, Morpheus, or eDonkey2000. Some of these networks offer abilities Napster never had, such as aggregating the bandwidth and availability of multiple sources, ad hoc networking with no central server. And if the music "industry" succeeds in killing those, the market for residential broadband is dead, as well.

        I hope Hilary Rosen cries herself to sleep at night saying "God, if only I'd left those poor college kids alone back in 1996!" (OK, not really. I'd really rather see her visit the Sonny Bono memorial tree at about 100 miles/hr.)

        • I don't think it'd come back very big. Any user with a significant degree of knowledge and desire to trade music is already using IRC or one of the next generation P2P networks, such as Gnutella, Morpheus, or eDonkey2000. Some of these networks offer abilities Napster never had, such as aggregating the bandwidth and availability of multiple sources, ad hoc networking with no central server. And if the music "industry" succeeds in killing those, the market for residential broadband is dead, as well.

          That's bullshit. Napster can add all the features of the decentralized networks (save for their distributed nature). Download from multiple sources would be a trivial hack. What advantage would Napster hold over, say KaZaA? One thing: speed and reliability. I'm on a reasonably fast connection here at UMass, and I rarely see/saw a rate with Gnutella or (before giFT was blocked) FastTrack that was even half of what my average Napster download was.

          People will go back to Napster if it comes back like it did before (especially with features like bandwidth aggregation). With less hassle and faster speeds, I'd say it's a given.

  • At least someone sees what's going on here... (Score:4, Interesting)

    by thesolo ( 131008 ) <slap@fighttheriaa.org> on Friday February 22, 2002 @08:35PM (#3055314) Homepage
    "In contrast, (the record labels') allegedly inequitable conduct is currently ongoing and the extent of the prospective harm is massive. If Napster is correct, plaintiffs are attempting the near monopolization of the digital distribution market. The resulting injury affects both Napster and the public interest."

    At least Judge Patel sees that the RIAA is not actually acting in the interests of their artists, but in the interest of their wallets.

  • An Interesting Perspective (Score:3, Interesting)

    by jwinter1 ( 147688 ) on Friday February 22, 2002 @08:38PM (#3055330) Homepage
    More interesting than proving that they own the songs (they may not own all of them, but they certainly owned some that were traded), was this quote:

    "[The] plaintiffs are attempting the near monopolization of the digital distribution market. The resulting injury affects both Napster and the public interest."

    I hadn't thought about it in terms of monopolizing means of digital distribution.
  • If the RIAA was planted in any other country we in the US would refer to them as a cartel.
    • Comment removed based on user account deletion

  • Appearing out of Nowhere. (Score:5, Insightful)

    by Alien54 ( 180860 ) on Friday February 22, 2002 @08:51PM (#3055382) Journal
    Patel said proving copyright misuse was difficult, but added the recording industry's licensing terms appeared suspect. "MusicNet did not suddenly appear full blown from the head of a fictitious entity. The evidence suggests that plaintiffs formed a joint venture to distribute digital music and simultaneously refused to enter into individual licenses with competitors, effectively requiring competitors to use MusicNet as their source for digital licensing."

    Possible criminal acts of the music industry are relevant as they are important to the continuation of the culture.

    I noted a comment above that this is unimportant, because napster is dead, etc. Sort of like saying that murder is unimportant because the victim is dead and you can't bring the victim back.

    Wrong. Unless you _like_ a world run by crooks, or are something of a crook or a criminal yourself.

  • Work for Hire is the key issue (Score:5, Insightful)

    by travis7 ( 259566 ) on Friday February 22, 2002 @08:51PM (#3055384)
    "The crux of Napster's copyright ownership argument revolves around a strange clause in copyright law called "works-for-hire," which essentially determines who owns the songs and albums. Any work of art -- in this case, music -- commissioned or created by an employee of a company becomes the property of that business. For example, reporters who work for newspapers don't own their stories."

    Although not 100% legally accurate, the point is that the ownership of copyright for something you don't create is basically a function of contract law - i.e., the recording contract. Most companies who pay for the creation of IP (record companies, software companies, etc.) attempt to argue and contract themselves into a "work for hire" status - which means, essentially that they (the company) are the author in the eyes of the law.

    However, work for hire, as the article states, is a doctrine that is controlled by statutory tests - simply saying something is a work for hire (even if the artist agrees to that in a contract) doesn't make it so.

    So what if it isn't a work for hire? Traditionally contracts have a back up assignment of rights. The problem is when such an assignment does not cover rights that, for example, don't exist at the time the contract was written. Imagine a contract written in the 70's - it obviously isn't going to assign rights to digital distribution to the record company.

    This comes into play in other industries - the publishing industry has recently had this problem with old author contracts where the author assigned all rights to publish a work "in book form" (standard language in older publishing agreements). Courts have found that electronic book rights still belong to the authors (or their estates).

    Of course, the lawyers now use a simple addition to the assignment along the lines of "in all media whether now know or hereafter developed" to show that the assignment is everything now and in the future.
  • It doesn't matter if the judge rules in Napster's favor, since Napster is trying to do exactly what the labels are doing with MusicNet and PressPlay anyways. Who cares if Napster lives or dies if we'll just end up with another sucky music subscription service.

    What I'm worried about is the decision earlier this week about the fees webcasters will pay for streaming online music (See earlier article [slashdot.org]). The fees ended up being much higher than the webcasters wanted (and much lower than the RIAA wanted). What this means for us is that all the decent online radio services, like Live365 [live365.com], will go out of business because they won't be able to afford the licensing fees, which will be on top of the already high bandwidth fees. So, we'll get stuck with the large music companies owning the digital music space, just like they do the current retail CD business.

  • When it reached this stage in the MP3.com case.. (Score:5, Interesting)

    by thumbtack ( 445103 ) <thumbtack@@@juno...com> on Friday February 22, 2002 @09:05PM (#3055437)
    The Recording Industry setttled, to avoid having to do this very thing....that was brought up by the attorneys for MP3.com. This will mostly be the same scenario here as well. The case is somewhat moot anyway. BMG owns the majority equity stake in Napster as I understand it, so it would be in both parties interests to settle. Except for the fact that the DOJ is looking into anti-trust allegations of the RIAA and members. (collusion). Once the Recording Artists Coalition filed an amicus brief on behalf of Napster (and the RAC doesn't like Napster), I think that Judge Patel woke up. The artist who the RIAA claims to represent say the RIAA doesn't and can't because they don't own the copyrights.

  • Comment removed (Score:3, Insightful)

    by account_deleted ( 4530225 ) on Friday February 22, 2002 @09:31PM (#3055527)
    Comment removed based on user account deletion
    • Unless, as per the court decision this week, a major conglomerate like AOL can slowly buy up all the music labels and telecom companies, then refuse permission to trade digital files via their Omni-Network without prior authentification vis-a-vis copyrights.

      God I hope not.

  • Who needs copyright and record labels? (Score:3, Insightful)

    by Ogerman ( 136333 ) on Friday February 22, 2002 @10:06PM (#3055617)
    Lets get a few things straight:

    #1.) Most moderately talented and experienced 'hobby musicians' (like the guys who play at small local bars/clubs/restaurants), with some practice, can play any popular (cover) song live just as well as the original musician(s), occasionally better.

    #2.) It is not hard to write good original music.

    #3.) Professional quality home recording is a reality and is not cost prohibitive for the vast majority of the US population.

    #4.) There is no shortage whatsoever of good to excellent musicians and singers.

    #5.) The vast majority of musicians perform for little or no pay simply because they enjoy doing it.

    Let me summarize in one statement: Music should be a pasttime, not a career!.

    So.. why do we need record labels and celebrity performers, again?
    • Here, let me turn that argument on its head for you. Much of it applies to programming too! Let's see if you like it from a different point of view:
      1. Most moderately talented and experienced 'hobby programmers' (like the guys who write open software for free), with some practice, can produce a piece of software just as good as commercial software, occasionally better.
      2. Professional quality compilers and development environments are available for free for all computer users.
      3. Many programmers give away their software for little or no money simply because they enjoy doing it.
      Let me summarize in one statement: Programming should be a pasttime, not a career!.

      So.. why do we need software companies and paid programmers, again?

      • Nobody's going to sit down and write software to monitor the flow of power though an electrical grid, or software to control the fuel-air mixture in a GE90-115B turbine engine, or automatic flight stabilization software for the F-22 as a friggin' hobby.

        Want a hobbyist-produced word processor? Fine. When teleoperated surgical tools become commonplace, I don't want the operating software for the machine that's tinkering around with my ticker designed by some guy living in his mom's basement who wears the same "Got DeCSS?" t-shirt for weeks on end.
      • Heh heh. Although the likelihood of my being able to sell tickets for people to watch me hack on the kernel is pretty low...
      • Yes, I do agree with this from a programmer's point of view, although programming can in some cases be different because it is based on functionality, not artistic merit. Because of this, it can be offered as a clearly defined service. Ex.) "I will pay you to write this software for my use." Much like: "I will pay to hear you perform this music in concert." No restrictive licensing. No middle man involved.

        Let me summarize in one statement: Programming should be a pasttime, not a career!.
        So.. why do we need software companies and paid programmers, again?

        We don't need 'software companies' as defined as companies who pay programmers to write software and then sell it under restrictive licenses. In some cases, small software companies that do contract based work are appropriate because it allows programmers to pool their knowledge more easily than is currently possible with open development over the Internet. But the software is still free.

        Maybe I should rephrase the summary as two words: service industry.
    • #1 - BIG DEAL. Because I can play Hendrix in no way means I can be Hendrix.
      #2 - Whatever. Sadly the only 2 ways he have to really judge "good original music" are sales and critical acclaim (and often the two are not in agreement). If you're so scary good, point me to either your sales figures or your critical acclaim. Lacking one of those two, give me some pointers to other methods to prove how you're Joe Talent.
      #3 - yeah, gotta agree 100% on that.
      #4 - mmmmmaybe. There's a million good people, but who the fuck cares. You need lots of people to work on a programming project, not sing bloody "la la la".
      #5 - You obviously have never played in a band. Please read "get in the van" by Henry Rollins.

      If you were in a band, you'd know what kind of BS you're spouting. I played in bands, played, etc. for more than a decade. I had friend who did the same.
      • #1 - BIG DEAL. Because I can play Hendrix in no way means I can be Hendrix.

        My point is the concept of folk music: playing popular tunes spread through 'grassroots' culture, but with your own touch. Sure, people will pay to see their favorite artists perform their original works in concert. But that doesn't need to involve copyright or record labels. Crazy idea, but how about a 'amphitheater co-op' that supports independent artists, perhaps drawing in non-local bands by vote of co-op patrons. There are numerous viable business models for copyright-free music, just as with Open Source.

        Whatever. Sadly the only 2 ways he have to really judge "good original music" are sales and critical acclaim

        I am suggesting that critical acclaim is enough. Scrap sales and marketing altogether.

        yeah, gotta agree 100% on that.

        For the musicians that play just for fun, they should not expect to be paid much if anything. For musicians are popular enough that people want to pay to hear them perform in concert, they should expect to be paid for the act of performing alone. Stop performing = stop being paid.. Just like the 'rest of us' hobby musicians who work a day job. Royalties are downright bullcrap.

    • Let's compare an hour listening to the radio to see what's new and then spending $20-$30 on CDs to the alternative:

      Going out to see 10 different artists, spending 3 hours on Friday for 10 weekends, spending money for the cover, transportation, drinks, food, and the opportunity cost of the time you spend. Then after all that, you realize that all except 2 or 3 of the artists were not to your liking.

      Even if you didn't go to shows and relied on free MP3s traded through the 'net you'd still have to do a lot more filtering.

      Here is a shocking reality that many Slashdot folks just can't seem to get through their heads: The industry exists as it does because it provides the best solution for most people. That doesn't mean it provides the best solution for your tight little demographic, but that's to be expected--few systems ever manage to achieve that.

      If you think you can provide a better alternative, you are free to do so. If a better idea exists, it will spring from the freedom of people to persue such ideas. If you don't believe me, remember what a shocker MTV was to radio, what a shocker Punk was to Disco. And guess what, the "Disco Mafia" was powerless to stop punk, just like there is nothing (except common sense) to stop you from voting Libertarian. So don't feed me that crap about the music industry being controlled by the Mafia. The Mafia couldn't do much about the Columbian drug cartels, and they won't be able to do much if a truly better business model comes along.

      So kwitcherbitchin and roll up your sleaves.

  • What I think the real reason for this is... (Score:5, Interesting)

    by DavidBrown ( 177261 ) on Friday February 22, 2002 @10:17PM (#3055628) Journal
    I'm reading between the lines here, but this development in the Napster case seems to parallel something that recently occurred with online internet rebroadcasts of radio programs. These rebroadcasts were temporarily suspended because, for the most part, the contracts between the on-air talent did not allow for rebroadcasting (these contracts were written prior to streaming audio was developed). Essentially, the work of radio on-air talent was being rebroadcast without them getting paid for it.

    This RIAA mess seems to be this: Not all artists have assigned their copyrights to the record labels. Some of these assignments may rather be in the form of licenses which do not extend to internet rebroadcasting rights. This, even if RIAA members may have the right to publish music, they may not necessarily have the right to rebroadcast that music on the internet. If they do not have that right, then Napster is not interfering with that right.

    Of course this does not get rid of the whole case. There is certainly much music out there of which the copyrights are owned entirely by RIAA members, and the RIAA lawsuit would still be valid with respect to this music.

  • Who Owns the Copyright? (Score:3, Interesting)

    by usurper_ii ( 306966 ) <eyes0nly@NOSpAM.quest4.org> on Friday February 22, 2002 @10:31PM (#3055664) Homepage
    For those saying the artists own the copyright...it isn't that easy. The artists would like to, and should, own the copyright, but the record labels say they own the copyright (well, I'm sure there are some artists that manage to keep their rights).

    Here is how it basically works: The artist is loaned money to cut an album. Artist's song goes to number 4 on the charts. Before artist sees a dime of the money, all the money "borrowed" for recording and marketing costs must be paid back. The label that picked up the artist now claims copyright to that recording (in most cases). And get this, the reason they say it is their recording and not the artists', is because they say they put up the money. When in reality, the artists have to pay back the money that the recording company LOANED them!

    I work for someone that just wrote a somewhat popular country song. He said the record company owns the copyright for the recording of that song. The band that recorded it -- Perfect Stranger -- can perform the song live, record the concert and sell copies of that recording, go to another studio and re-record the song...but the copyright to the song that is being played on the radio does not belong to them.

    Jay

  • Maybe Steve Jobs gave her an iPod for Christmas?
  • as I was scrolling through the thread, someone was talking about artists that have sued the RIAA about copyright issues. one of the artists named was Dr Dre. for those who arent familiar with his work, before his "chronic 2001" album was released last year, he put up mp3's of *ALL* the songs on his website and offered them free-of-charge. granted, he was probably hoping that people would d/l the tracks then go out and buy the cd when it was released, and as far as I know, people did *BUY* the cd.

  • i think everyone missed the point... (Score:4, Interesting)

    by taco1991 ( 213491 ) on Saturday February 23, 2002 @12:30AM (#3055889)
    This is a HUGE blow to the music industry's case. The implication of Judge Patel asking them to produce copyright information is that, if they can't do it, the ENTIRE MUSIC INDUSTRY would be forever changed. Right now, music companies strap artists into super-restrictive contracts where anything the artist makes instantly becomes property of the label. This means that, perhaps, the power of ownership could fall back into the hands of the rightful owners - the artists. The RIAA knows this, and now they have to defend themselves. Ahh, sweet irony...

    The other serious side effect of this is that the judge realizes that, like the article said, the music industry is moving into a monopoly of online digital music. We all know that the Napster law suit was raised not because the music industry doesn't want online transmission of music, but because they were late to the game and Napster beat them to the punch (and to the money). Judge Patel is calling their bluff and is saying that you can't shut down Napster just to steal their business.

    This is a HUGE turning point to this case, and don't be surprised if the issue of copyright holding in music as a whole is revisited because of this line of inquiry.

    taco
  • Napster "didn't rule out the possibility that the two sides would work out a settlement that allows the company to launch its legal service. "

    They're perfectly willing to settle with the recording industry, which means they're perfectly willing to fuck the artists.

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