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Lessig on Streamcast/Grokster Decision 187

Posted by Hemos from the preaching-to-the-choir-here dept.
scubacuda writes "Lessig has an editorial in Financial Times regarding the recent court decision in favor Streamcast (which distributes "Morpheus") and Grokster. 'The wisdom of this rule is something innovators in Silicon Valley are increasingly coming to see. When courts intervene to maintain copyright's balance, the inevitable consequence is that innovation is harmed. If every innovator with technologies affecting content must bear the burden of a lawsuit before his innovation can be allowed, there will be many fewer innovations in the distribution and creation of content. That in turn will harm artists and technologists alike. Better to let the innovation happen, and then consider whether the change caused by the innovation is so significant as to require new legislation by the legislature.'"
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Lessig on Streamcast/Grokster Decision More

Lessig on Streamcast/Grokster Decision

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  • I like Ian Clarke's idea (Score:4, Interesting)

    by Paddyish ( 612430 ) on Monday May 12, 2003 @08:51AM (#5935685)
    It may, in the end, come down a choice: Free speech or copyright enforcement. I know what I'd pick.

  • A rider is needed??? (Score:5, Insightful)

    by jkrise ( 535370 ) on Monday May 12, 2003 @08:51AM (#5935691) Journal
    "Better to let the innovation happen, and then consider whether the change caused by the innovation is so significant as to require new legislation by the legislature."

    What about the innovations of monopolies? By the time the changes caused are considered and legislated, it may be too late.

    • Re:A rider is needed??? (Score:4, Interesting)

      by smd4985 ( 203677 ) on Monday May 12, 2003 @09:52AM (#5936007) Homepage
      I disagree. Lets take MS for example: As much as I dislike their business practices, they have done a lot of good for innovation. By developing and supporting a common platform (the Win32 API), they have allowed for tons of innovation in software. The problem with MS is that they *own* the rights to build implementations of that API - if the API was a standard and any vendor could provide an implementation, their offenses might not be as egregrious. Unfortunately, they have not disclosed all aspects of that API and they continue to collect monopoly rents. The failure in the system with regards to MS has been mainly with several rulings by appeals courts and the toothless remedy sought by the pro-MS federal goverment.

      Anyways, Lessig makes several good points. Go Lessig.

      • [Microsoft has] done a lot of good for innovation. By developing and supporting a common platform (the Win32 API), they have allowed for tons of innovation in software.

        Such as? Microsoft has retarded computer, software, and operating systems for decades. As the market dominant player, they could have developed a robust OS that didn't crash decades ago. (Unix existed, doesn't crash: therefore, it could have been done.) They could have pushed the industry forward with their money, resources, and resea

        • Microsoft doesn't innovate. They don't have to. They can sit on their collective fat asses and rake in the money because, in many environments, consumers have no choice. It's only external pressures (Apple and Mac OS X, Linux, etc) that force Microsoft to "innovate" which really means ripping off what's already been done.

          Don't believe me? Look at the "new" Athens PC [com.com]. (Go down to "Gates offers tour of 'Athens' prototype PC.")

          Wide-aspect ratio, flat panel display, one cable between it and the comput

      • ...[microsoft] have done a lot of good for innovation. By developing and supporting a common platform (the Win32 API), they have allowed for tons of innovation in software.

        This is crap. They have blocked a "common platform" from being adopted. They create proprietary APIs so developers have a difficult time creating cross-platform products. Posix, ANSI C, X11, and even Java have allowed interoperability in software, which allows more freedom and innovation. MS has suppressed innovation to keep their monop

  • for info (Score:5, Informative)

    by pbhj ( 607776 ) on Monday May 12, 2003 @08:52AM (#5935696) Homepage Journal
    Lawrence Lessig: Grokster's victory for innovation
    By Lawrence Lessig
    Published: May 9 2003 16:35 | Last Updated: May 9 2003 16:35

    In 1998, in a string of judicial decisions, courts in the United States found Napster responsible for the copyright infringement that occurred on its file-sharing network. The burden of these decisions effectively closed down the company. Last month, a district court held that neither Streamcast (which distributes "Morpheus") nor Grokster could be held responsible for the copyright infringement that occurred on the file-sharing networks they supported. (They both initially supported the "FastTrack" network; Streamcast now builds its client on the "Gnutella" platform.) Thus, Napster: bad; Grokster/Morpheus: good.

    This decision has surprised commentators. From 10,000 feet, the two file-sharing networks look very much alike. But they are technically quite different, and that difference clearly mattered to the court. Yet more important than the technology is the difference in judicial attitude that the district court displayed. It is this difference that would really matter if upheld on appeal.

    Grokster and Morpheus run on peer-to-peer networks, which means that content is shared not between them and their users but between the users of the network themselves. This was true of Napster as well. The difference is that Napster kept a central list of all the available files, which enabled it to control who got access to what content. That meant that Napster could be held responsible for copyright infringement happening on its network. Because Napster benefited from the infringement and had the opportunity to stop it, the courts held Napster responsible.

    The design of the Morpheus/Grokster networks, however, means that the defendants do not have the same opportunity. Because there is no central list of files that can be shared, neither Grokster nor Streamcast are able to control the content that users access. There is therefore no way for either company to take steps to block infringing sharing.

    No doubt, the court observed, these companies benefited from the sharing. And no doubt, it went on, peer-to-peer networks were designed in part to avoid the ability to block infringing sharing. But because the law requires that there be both a benefit from the infringement and an opportunity to do something to stop it, District Court Judge Stephen Wilson was not willing to find either company responsible.

    The reason the court hesitated is a good one. As the district court reminded us, the practice in copyright cases has not been for courts to expand liability in response to new technologies. It is instead that any such expansion be done by Congress. This principle was the basis upon which the Supreme Court decided that Sony was not responsible for the copyright infringement that the VCR enabled. As the Court reasoned, no doubt Sony could have designed the VCR to disable the ability of users to record shows from the air. But whether Sony should have been so required was a decision for Congress. The only question that a court should ask is whether the technology is "capable of substantial noninfringing uses". If it is, whether its use should on balance be considered infringing is a question for policymakers, not courts.

    In the VCR case, Congress eventually decided that the use should be permitted - even though, without doubt, many people were copying copyrighted material without the permission of the copyright owner, and, no doubt, Sony benefited from that copying. But as Congress and the courts well recognise, copyright law is not absolute. The lines that Congress draws must balance the interests of users and copyright owners to the end of spurring innovation. That balance is inherently political. And therefore, when a new technology changes the balance, the appropriate role for a court is to leave it to the political branch to decide whether the change is to be allowed or to be remedied through new legislation.

    The wisdom of this rule is s

  • sounds familiar (Score:5, Insightful)

    by Anonymous Coward on Monday May 12, 2003 @08:54AM (#5935704)
    Kinda like "innocent until proven guilty". Right?
  • So i could see the look on the faces of the RIAA drones turn from smug self satisfaction to shock. Go the District court!!!!

  • DMCA - Another Attack (Score:5, Insightful)

    by Pavan_Gupta ( 624567 ) <`pg8p' `at' `virginia.edu'> on Monday May 12, 2003 @08:59AM (#5935725)
    Interestingly enough, I do feel that innovation is what is truly being attacked when the DMCA "hammer" (or war drums) are beat upon all the time.

    On another note, and one seldomly discussed ... it's obvious that there is a problem here. We want more content, but when we steal it, the companies we love and hate so much won't be as willing to give it. Hence Palladium, DRM, etc.

    If people could throttle themselves, the problems that we have with content distribution wouldn't be problems at all. Sadly, we can't, so legislation is absolutely neccessary in throttling all those people that can't throttle themselves.

    That delicate balance between the rights of the societ and the rights of the owner of the content is dynamically changing, but it is definitely true that technology has given society the ability to very easily steal from the owner of copyrighted material.

    Everyone is to blaim. The RIAA, MPAA, Microsoft (in some cases), etc. are hardly in the 21st century. Sometimes I wonder why they complain so much since it's obvious that they should try to start a better music distrubtion model than what they already have. Sometimes sacraficing profits for common sense is a smart thing. We're also to blaim. People using Grokster, Kazaa, Morpheus, Gnutella2, etc. are thieves (for the most part). The last time I found a nice piece of uncopyrighted material on kazaa and not on Google was .. never.

    At any rate, it's a mess out there. The RIAA and MPAA are definitely stupid. They're planning on waging war with their entire customer base (or a large part of it). I'm not bussiness guru, but I definitely see a problem with that.

    Anyway, I feel like I'm rambling now. People should buy their stuff, and big companies need to take their heads out of their rear ends, and realize that their is money to be made where the biggest battles are being waged.

    • Re:DMCA - Another Attack (Score:5, Insightful)

      by aborchers ( 471342 ) on Monday May 12, 2003 @09:53AM (#5936015) Homepage Journal
      Well said. Content owners and Congress would not be wasting their time on these efforts if it weren't for thousands/millions of users infringing their copyrights.

      I will now save people the trouble and typing and list the inevitable replies to this post.

      • It's not stealing, it's copyright infringement. Sec 107, blah blah blah
      • I will buy their stuff when they stop putting the one good track I want on a $20 cd with 9 other bad songs, blah blah blah
      • Ahhh! You mispelled society! blah blah blah


      Any I'm forgetting any? :-)

      • Yes, you forgot to somehow work in an intelligent discussion of Fair Use. Most of the copyright activity you're seeing isn't intended to clamp down on "piracy" (which really could be considered "free advertising" in many cases), it's intended to restrict Fair Use. One of the primary activities outlawed by the DMCA is, in fact, Fair Use. Many of the DRM schemes being floated will obliterate what's left of the right of first sale (which doctrine actually enshrines the right of a buyer to resell a good).

        So
        • Yes, I was just being glib, which is why I didn't spend any time on the complex issues of fair use and copyright expansion. I assumed (correctly judiging by more recent posts) that they would be brought out by others. I didn't back up any assertions because I was trying to be funny. I think there is adequate room for expansive discourse and terse humor on this board.

          Thanks, nonetheless, for your well-informed and insightful comments. I hope you are also sending them to the policy makers who influence the d
        • You've made a very good argument, but really, there are only a couple key points you missed.

          When "pirating" copyrighted material, are you simply committing petty theft?

          Obviously. You're not paying for things that are sold.

          Is "piracy" truly driving innovation?

          Obviously not. People are reluctant to innovate if they see no carrot. (I understand some people see that higher meaning, but I hardly believe most do)

          At the very core of this argument, it comes down to a very simple concept: theft.

          If copy
          • Your post is a total non-sequitor to mine. I discussed the impacts of a zero growth policy for the public domain and the expanding definition of infringement. You seem to think I said "piracy" was some sort of protest. Nor did I mention gouging (never mind that several record companies were found guilty of illegal price-fixing). And you talk about "theft", when it's clear that the discussion is about copyright infringement, not shoplifting.
        • In fact, often those redoing Shakespeare's plays belong to the same industry pushing for expansions on its ability to prevent others from doing anything similar with their own works.

          The biggest culprit, IMO, being Disney. How many of their blockbuster movies are based on previous works? Everything from "The Jungle Book" to "The Little Mermaid".

          But allow anyone to write a story or other work involving Mickey Mouse, and watch out!

  • Copyrights and wrongs (Score:4, Insightful)

    by locarecords.com ( 601843 ) <davidNO@SPAMlocarecords.com> on Monday May 12, 2003 @09:01AM (#5935735) Homepage Journal
    The problem is that the balance between copyright holder and user has become weighed down in legislation that is becoming increasingly technologised. So instead of broad rules that can be interpreted by the judges (and software developers) it seems that the rules are instead being read and written far too literally.

    Good fences make good neighbours and the problems at the moment are certainly due to the nature of the business cycle in technology. Once case law has been built up significantly it will be clearer what the risks and responsibilities of innovation and law are.

    Personally I think that the courts are the place to argue out the rules of innovation as if you believe in the idea strongly enough then you will be willing to fight, or raise finance to do so. If this forms part of your business proposal then that is right and good. Business decisions are implicitly risky and this will have to be bourne in mind.

    However this is with the caveat that copyright should be limited and the public domain requires legislation to prevent unlimited monopoly of ideas for all time...

    • Re:Copyrights and wrongs (Score:4, Insightful)

      by stubear ( 130454 ) on Monday May 12, 2003 @09:23AM (#5935829)
      I agree with much of what you said except for this, "unlimited monopoly of ideas for all time..." Copyright does not protect ideas, it only protects the expression of ideas. That is why, as a creative person, I find it hard to believe the public domain have been so irreparably harmed. One could still create a cartoon character of a mouse and his adventures with other animal friends but the minute they give their mouse red shorts, yellow shoes and white gloves and call him Mickey, they have crossed the line from the idea (a cartoon mouse) to the expression of that idea (Mickey Mouse) which is protected by copyright. Abolish the DMCA, copyright laws will still exost, there is no victory there. Even if copyright went back to the original 14+14 year term and extension, much of what is on P2P networks and streets through Eastrern Europe and the Far East is still illegal. Lessigs fight, whether he knows it or not (and more's the pity if he doesn't) is more about getting stuff for free than it is for somehow protecting the public domain from copyright extensions.
      • I think you make a very good point. However the line between idea and expression of idea is being blurred by the large multinational copyright holders. And who can blame them..

        So there are many cases where people are being sued under copyright law just as a scare tactic because the copyright law allows them to defend their copyright. Additionally this closes down the potential for reuse, parody and so forth and an extra avenue for expression.

        I think the public domain should be viewed as a sphere of orig

      • Copyright does not protect ideas, it only protects the expression of ideas.

        In theory Copyright only protects the expression, not the ideas behind the expression. The big exception, at least in my opinion, is the concept of derivative control. There are two main areas where this comes up - translations and sequels. These concepts have been introduced into US copyright law over the last 100 years, and have grown progressively stronger.

        The case for granting copyright holders protection against translatio
        • Your book/movie example highlights a good example of a derivative work. Copyright strictly protects the creators right here and it's not a terrible thing. You're wrong when you stated "They have no common "expression" (such as a movie character who speaks something written in the book)" because the expression IS the combination of dialog, the character's name, the location of the plot and the plot itself. My point was a screenplay writer could take the thesis the book author presents and write a compell
          • Depending upon circumstances I may even agree with you, but you have to confess that things can get pretty fuzzy when you talk about expression being a combination of dialog, the character's name, the location of the plot and the plot itself. The importance of any particular factor varies a lot!

            The way I see it, there is a spectrum of derivative work - ranging from straight translations to stories that are only vaguely related. My complaint is that the current copyright laws have been largely written by
            • "One other factor to take into account is the shrinking of the public domain."

              This is a logical fallacy far too many people arguing for copyright reform make. The public domain is not shrinking, it is simply not expanding as quickly. Once a work is in the public domain, it is in the public domain. Even the Eldred case did not remove works, it simply stopped some works from making it into the public domain at the last possible moment.

              However, I still feeel that you are failing to see my point. I'm gue
              • I'll concede your point about the public domain not shrinking, but you can't claim it is expanding either. Once material from 1923+ starts expiring, than I'll let you get away with "not expanding as quickly" :-) I hope congress took enough notice about the Eldritch case to stop them from lengthening the term again, but I remain pessimistic.

                As for creativity, I attended a liberal arts college with emphasis in Journalism and Theater (my major was computer science). I've taken a graduate seminar in law for
    • A 'good fences make good neighbors' metaphor implies a peer-peer relationship. It somehow implies that the 'fence' divides an area into two equal spaces.

      That's really not at all the problem here. In the case of copyright protection, the fence divides an art conservatory from a flea market. The 'peers' who are 'sharing' content are a community of people who create little or none of the content that they're 'sharing' among themselves. Rather, they've expropriated content from a different group of people
      • I think you misunderstand the metaphor.

        Good fences make good neighbours means that if the property ownership rules and relationships are clear then if the matter comes to court then it is easy to resolve.

        If on the other hand ownership and rights of usage are blurred and confused it will be difficult for courts to make a decision and will probably require legislation, ie a Political decision as to the rights and relationships.

        Thats why nice clear broad rules are preferred in legislation and the microd

        • No, 'good fences mean good neighbors' implies that the neighbors are good to one another. It implies that the neighbors see each other as peers.

          It is a metaphor that would apply between two music publishers with a 'fence' between them, i.e. who each publish their own line of content. It is a metaphor that would apply between two neighbors each with similar back yards, or pastures, etc.
          • It means in property terms there is a clear demarcation of property rights.

            That is your backgraden

            This is mine

            It is not a moral rule at all. It does not mean they are good to one another... They will have a good relationship as they are less likely to argue over their respective backyards...

    • Re:Copyrights and wrongs (Score:2, Insightful)

      by joak ( 514399 )
      Personally I think that the courts are the place to argue out the rules of innovation as if you believe in the idea strongly enough then you will be willing to fight, or raise finance to do so. If this forms part of your business proposal then that is right and good. Business decisions are implicitly risky and this will have to be bourne in mind.

      The problem is this puts an immense barrier in front of new ideas. If their legality is not clear, and a lawsuit costs hundreds of thousands of dollars to fight

    • Personally I think that the courts are the place to argue out the rules of innovation as if you believe in the idea strongly enough then you will be willing to fight, or raise finance to do so. If this forms part of your business proposal then that is right and good. Business decisions are implicitly risky and this will have to be bourne in mind.

      You're making the assumption that all innovation comes from business or from individuals with the resources to go to court. People can still innovate without h

  • Judge Wilson's decision is the first sign of a thaw in the winter that has stopped the technology revolution cold.

    Let's hope that spring and summer aren't skipped a la Monty Python. ;-)
  • Consumers are not stupid, they all realize that:
    1) buying an album without hearing the songs on it is really foolish.
    2) most bands these days have one or two really well produced songs ("singles") and then a slew of filler songs on a record.
    People will buy a good album, as Eminem's or any other platinum artist's sales will show you. Before technology like Napster, I never would have bought many albums that I own, because there was no other way to hear the songs. Napster was music on demand. Granted, letting people have the files probably hurt the incomes of bands whose older material is far better than their newer material (Metallica, etc). Of course people are going to steal the good songs! If bands put out enough good songs on their records, people will buy the record because it's easier than hunting for and downloading all the songs. Technology doesn't beget theft, it just shows the true value of the data it is transmitting.
    • People will buy a good album, as Eminem's

      I never thought I'd see the day when I saw the words good album and Eminem used in the same sentence! I forget, is he the blue one or the yellow one?

      Aside from that, I agree. The blame lays only partly with the P2P file trading. The majority of it is most of the stuff they put out is crap.

      The music industy as a whole will evolve, but with any significant evolution, it will be painful and there will be a great deal of reisistance at all steps. Apple has the right idea, and if (when) this model comes around to PCs, I'll support it - presuming that the artists make a fair profit off their work. I've never had a problem paying for good music.

      How come the pr0n industy doesn't complain about P2P downloads?

      • I never thought I'd see the day when I saw the words good album and Eminem used in the same sentence! I forget, is he the blue one or the yellow one?

        I never thought I'd think this too so I sampled and then bought "The eminem show". The eminem show contains at least 4 memorable songs, and a few more good ones. Listen to it while reading the lyrics, look at how he rhymes, it's great stuff. I recommend "white america", "business", "cleaning out my closet", "soldier", "whitout me"

    • 1) buying an album without hearing the songs on it is really foolish

      From the time the LP was invented in the 50s until the advent of peer to peer in the late 90s, people bought albums without hearing all the songs on it. I can't tell you how many times I bought an album on the basis of a review from a friend or a magazine, without having any idea what the band sounded like, or on the basis of one song I heard on the radio. What has changed, besides the available technology?

  • But what about Kazaa? Doesn't it have a central server?

    In any case, this is a great victory for the p2p community. It also shows that the RIAA/MPAA aren't all-powerful and that we can win if we just use the law against them. :)

    • Re:Wonderful. (Score:5, Informative)

      by Paddyish ( 612430 ) on Monday May 12, 2003 @09:13AM (#5935796)
      No. 'Supernodes' take care of the cataloguing of files on KazAa. New Gnutella distros use 'SuperPeers' for the same thing. And any user can turn their computer into a supernode or superpeer (at considerable bandwidth expense). So there's no central server keeping the network afloat.
    • Kazaa's central server doesn't store a comprehensive list of the files transferred across its entire network, however. So it really can't keep track of what's being shared. That's the main difference that the courts are concerned with.
    • Measure, Countermeasure, Rinse and Repeat. I'm pretty sure most of us are no longer using KazaaLite, or Grokster. BitTorrent is surely the way to go for now. Unless you have the time to sit on IRC and play with fserve's and dcc all day. I'm waiting for someone to name their file sharing idea "Hydra".

  • great! (Score:3, Funny)

    by Tuxinatorium ( 463682 ) on Monday May 12, 2003 @09:07AM (#5935762) Homepage
    Does this mean that all my keygens will be legal until proven otherwise?

  • Newspapers (Score:5, Insightful)

    by BJZQ8 ( 644168 ) on Monday May 12, 2003 @09:10AM (#5935770) Homepage Journal
    I can imagine what the RIAA/MPAA would think if we were today debating the freedom of the press. After all, newspapers can be used to STEAL copyrighted works! This must be stopped! It's not the messenger, it's the message. So maybe Napster/Grokster/Morpheus are mostly used for infringing...but they in themselves are not infringing anything. If I make a telephone call to get my gang together to conduct a bank robbery, the law doesn't hold the phone company liable. I know about common-carrier laws, but this is a good comparison. It's the message, not the messenger.
    • Hilary Rosen of the MPAA, I believe, gave a speech lamenting libraries, of all things, because they loaned materials out without any payment required.
    • If newspapers had historically been used to reprint unauthorized copies of creative works, i.e. poem, short stories, chapters of novels, they would have been stopped. As it stands, newspapers have always printed content created by the people who the newspapers employ and offer renumeration to.

      So your weak historical analogy crumbles.
      • So your weak historical analogy crumbles.

        No it doesn't. The fact that matters is that while newspapers CAN be used illegaly (just like p2p), they aren't. So how can a p2p-software maker be held accountable for the actions of others?

        But there's something else that crumbles the analogy and that's that newspapers should not be compared to p2p software; newspapers provide the content (articles) along with the medium (paper) while p2p software doesn't; it provides only a medium. Therefore the comparison is wron

      • If newspapers had historically been used to reprint unauthorized copies of creative works, i.e. poem, short stories, chapters of novels, they would have been stopped. As it stands, newspapers have always printed content created by the people who the newspapers employ and offer renumeration to.

        So your weak historical analogy crumbles.

        Seeing as you're wrong, you're weak retort crumbles. Newspapers can and have reprinted unauthorized copies of creative works. When that happens, we hold the newspaper acc

  • Bad Lessig Day (Score:2, Funny)

    by Anonymous Coward
    I know that Lessig is a keen and able at fighting the corner for the Open Source movements BUT

    Why does he have such BAD HAIR?!?

    Surely a quick once over with the clippers would resolve the problem and improve a particularly unfortunate hair disaster area.

    And maybe Stallman would take a hint too??

    ;-)


  • As that old Joe cartoon might have portrayed Hetfield saying
    "Thus, Napster: bad; Grokster/Morpheus: good."

  • The war continues (Score:4, Interesting)

    by the-dude-man ( 629634 ) on Monday May 12, 2003 @09:21AM (#5935817)
    Well they won this battle, its time for the thousands of mindless appeals aiganst them now.

    You know...apple embraced the p2p sharing thing, and they are making alot of money off of it, the artists are going to make money off of concerts not cd sales, so if the governing bodies are so worried about their existance...one would think they would simply embrace this as a new distributing channel and make money off it like apple did. Guess logic isnt their strong suit.

    What i find funny is how the executives talk about this as being on the same *moral* level as walking into the store and stealing the cd....please...this is comming from the people who when *their* morality was questioned for the content they advocated, they said they were just pushing the limits of scoiety...now when someone else is using morality that isnt in their interest...its *immoral* please.

    Let the retarded appeals begin

  • Those filthy filthy thieves... (Score:5, Insightful)

    by Anonymous Coward on Monday May 12, 2003 @09:22AM (#5935821)
    Actually, just trying to head off at the pass the silly ignorant posts that do one or more of the following:

    call downloaders thieves

    call downloading or copying theft or stealing.

    Copyright infringement is never theft; it does not meet the definition of theft, especially the part about "taking" (if you create a new copy of an item, you are not taking the item).

    The argument "you are depriving artists of money" argument does not wash either, due to the fact that many, if not most, instances of copyright infringement involve situations where the copier would not have paid the artist in the first place.

    In the cases of bootlegs, mashes, or out of print songs being downloaded off p2p networks, there is never a loss of money to the company and artist: they refuse to sell the material in the first place!

    The connection to the artist's money is tenuous at best. If a copier is a "thief", then so is anyone who protests a business. In both examples, no actual theft takes place, but there is sometimes a loss of money to a business.

    It may be a crime, but it is not theft.

    • "Copyright infringement is never theft; it does not meet the definition of theft, especially the part about "taking" (if you create a new copy of an item, you are not taking the item)."

      This is just a semantics game. I guess there's no such thing as "identity theft" either? People use the word "theft" in a lot of ways that don't synch with a strict legal definition, but other people tend to understand what them mean. For example, if someone came in to your yard and took all of the apples off of your tree yo
    • I always find it a little strange that so many /.ers, who probably do, or will, make their living by creating intellectual property think that those creations should not have to be paid for.

      Here's a thought experiment: let's say you're a computer programmer and create something unheard of wicked. You show it to a company and they copy it, sell it as their own and throw you out on your ass. Wouldn't you think it entirely besides the point if, when you call them thieves, someone prissily sidles up to you a

  • So the music industry dies. Who cares? (Score:5, Informative)

    by gosand ( 234100 ) on Monday May 12, 2003 @09:22AM (#5935824)
    The big argument against file sharing is that if it becomes "legal", then all of the musicians and performers will starve and die. They won't be able to make any money, and their careers will wither away. We will have killed the music industry in America.

    Boo frickin hoo.

    As we have been repeatedly shown, the music industry is a business, pure and simple. It has always been like that to some degree, but now it seems it is purely a business. In any business, you take risks, and you stand the chance that you might go under. This happens to every business. If you can't change with the times, you just might collapse. This is what is happening to the music business. They refuse to accept the change that is happening. They will not accept online music, even though online music won't be stopped. If they can't deal with it, they will die as a business. I can live with that.

    If the music business as we know it dies, it won't be such a bad thing. Maybe we will go back to the majority of artists actually making music instead of simply "performing". It would be like a forest fire wiping out everything. Eventually, it will grow back. Music is too important to our culture, to everyone's culture, for it to die off totally. I don't want the music to die off, just the business that surrounds it. It is just another business, and brings no real value to the people who love music. If the music industry dies, it is simply evolution.

    The ironic part is that the music industry has created and fueled this need for music. They have trained people to consume consume consume. CDs are $11.99 for the first few weeks they come out, to get people to buy them. After that, they go on the rack at $18. Why? So you can buy the next latest release. They created it so that we have portable music in portable cassette and CD players. They want us to want music. So now we want music! We want to hear it all the time, we have the capabilities to store thousands of songs on our computers, to take them with us wherever we go in smaller and smaller devices. So, RIAA, you have created a monster that you can't control any more. Reap what you sow, motherfuckers.

    • Actually, what will happen is artists will probably become service providers. Nothing can replace the feel and tone of live music in a restraunt or on the street. One of my greatest memories of a past vacation is of a guy wailing on a sax in the middle of the night.
      That type of thing couldn't have been duplicated by a couple of kids playing some music on a boom box.
      Even though all I have left of the experience is a memory (and a log in my travel diary), I gave the guy 2GBP. It was not a lot, but it was the

  • Total separation of distribution and payment (Score:3, Interesting)

    by Boss, Pointy Haired ( 537010 ) on Monday May 12, 2003 @09:26AM (#5935843)
    I honestly think this is the only way to go.

    If you release music as an audio file you can include meta data giving the URL of a Website from where you can make payment for the track.

    Video can include a still frame at the start giving a URL from where a license payment can be made.

    Those without Internet access could make payment via telephone or even in traditional stores.

    If I was the music industry I'd be saying to myself,

    "Right, can't beat 'em - exploit 'em."

    By unleashing the distribution innovators of any kind of licensing or copyright problem could distribute their material further a field that they could ever dream about - and if only a small percentage actually go the appropriate payment website and make payment it could still be a huge amount compared to today's sales.

    What would be the problems with this kind of set-up? Would the labels just disregard this idea outright without a second thought?
  • Why is anyone making any fuss at all over "peer to peer" sharing companies? What could I do with any of this *-ster software that I can't do with apache and proftpd (which I already have)?
    • Get millions of users to install apache and and an ftpd on their windows box, share all their media (mp3, .oog, .mpg) and build a search engine for all of those peer's and you have a P2P network. The fastrack based systems (kazza, Kazza-Lite, old morpheus) actually are using a http (I think 1.0, might be 1.1) server on a non-standard port (1214) with some hacked in headers, nothing special.
      • You don't need a very sophisticated search engine, all you need are meaningful filenames and a script to pretty up the output from ls -R. It's work to set up, of course, but once up it stays up (unless you're using windoze...)

        As long as there are a few users whose IP adresses either are static, or change rarely, then their machines can act as nameservers (or more likely just dispense hosts and/or resolv.conf files) for the more changeable ones. Bots could be used to update these lists; on the static

      • And when you do so, go back to the glory days of Napster, and return directory names as well as file names; helps you find complete albums that much more easily.

    • Sure, theoretically you could set up a whole trading network that way. The difference is, the P2P clients vastly lower the barrier to participation by requiring far less time and technological sophistication.

      To say that they don't make any difference at all makes about as much sense as saying that a CD burner shouldn't be scrutinized for possible infringing uses because you could have just gone and made friends with all the artists, and had them each give you a copy of the CD.

  • Times Are a'Changing (Score:5, Interesting)

    by ausoleil ( 322752 ) on Monday May 12, 2003 @09:32AM (#5935874) Homepage
    The records companies, movie studios, etc., are trying to preserve their monopoly on the only thing that they have of value to sell, that is, their content. Before the day of P2P, they attempted to suppress cassette tapes and VCR's in much the same manner, using the same tactics of Chicken Little "sky is falling" doom and gloom. It didn't happen then, it probably will not happen now.

    In fact, much of the revenue generated by a film is through it's secondary sales channels, namely videos (videotape and now DVD.) Had the masses not had the ability to record, how long would it have taken for VCR's to be adopted? Much longer would be my guess.

    So at the end of the day, the content providers figured out how to actually utilize the new technology (VCR's) that previously had been the (they said) precursor of their Armageddon and make money off of it.

    It may just turn out that they could do the same with P2P. Yes, piracy is rampant in that area currently, but there are ways, as iTunes has obviated, to make a lot of money by downloading music. iTunes has given consumers choice, and consumers have shown that they are willing to pay for high-quality music of their choosing.

    No iTunes is not P2P, but it is what P2P really is -- an electronic distribution channel that brings the record store to the web browser. That's really what Grokster, Kazaa, etc., are -- ways to get music sitting in your underwear on Sunday morning while you're sipping coffee. Music that you choose, not the 13 other tracks on a given CD that, well, suck.

    They should have learned this, if nothing else: that consumers are far less willing to accept the old status quo of buying albums by the current "pig in a poke" method -- you know the one song that Clear Channel's been bribed into playing, but the others are a mystery. More often than not, they aren't the greatest. Rare is the album that's pleasing end to end any more. And at $19 bucks a pop, it's no wonder people are refusing to plunk down the price.

    Given the choice between a fair price for a legal Napster of a certain guaranteed quality, of songs that they want (no filler) I would think that many people would be happy to pay for it. Time will tell. What's clear though is that the meteor has crashed into the record companies' world and it is now their choice to be either dinosaurs or evolve into something that can survive.

  • A lot of people harp on about how the DMCA is stifling innovation (ie. making downloading free music illegal), but you all seem to have forgotten what Apple has accomplished with its new music service, despite the DMCA.

    If such an innovative, practical, and quality service is available and legal under the DMCA, what are we really complaining about? I think Apple has debunked a lot of myths about the DMCA, and some of us here just can't deal with that.

    • So certain are you? (Score:5, Insightful)

      by Joe the Lesser ( 533425 ) on Monday May 12, 2003 @09:44AM (#5935961) Homepage Journal
      I, for one, won't accept this logic.

      Premise: Things fall to the Earth.

      Counter-argument: Clouds don't.

      Conclusion: Things don't fall to the Earth.

    • Re:DMCA NOT Limiting Innovation! (Score:4, Insightful)

      by Abm0raz ( 668337 ) on Monday May 12, 2003 @10:22AM (#5936233) Journal
      I disagree slightly with your premise. I don't feel that Apple has debunked any 'myths' about the DMCA. What Apple has done is what the big 5 and the RIAA (and for that matter, the MPAA) have refused to attempt in a truly marketable way, and that is "When life gives you lemons, make lemonade."

      Apple looked and said, "We have this great new electronic distribution method for releasing media. PRO: It's extremely low cost, popular, and we can make money off of it by providing a low cost alternative to our target audience. CON: Copyrighting LAWS make it a gray area and difficult to impliment. Solution: iTunes"

      This is where the others have failed. They have tried to either squash the technology, or have provided subscription services that are more expensive than the actual cost of purchasing CDs and ripping them yourself. Even worse, most of these services worked more on a rental system and only allowed you to keep the music as long as you were still a member. This is a business model doomed to fail from the start.

      Apple's true lesson here is that those that refuse to grow, adapt, and evolve will eventually find themselves dying out and becoming extict."

      Change or die.

      -Ab
    • I doubt if Apple would have taken the risk if various p2p services had not shown how great a demand there was for online music. As it happens the developers of these p2p services were not detered by the threat of being sued out of existence, so this particular innovation was not stifled. However, Lessig's argument is really about all the innovations that we have not seen, and are unlikely to ever see. He has identified a significant disincentive to inovation (if your innovation threatens existing business m

  • So Malthus May Have Been Right, After All (Score:3, Interesting)

    by crashnbur ( 127738 ) on Monday May 12, 2003 @09:39AM (#5935921)
    Thomas Malthus [berkeley.edu], a political economist around the turn of the 19th century (lived 1766-1834), predicted that man would eventually use the world's resources before our needs were served, and the entire world would be driven into poverty. (See his Essay on the Principle of Population [wwu.edu], in which this theory is very thoroughly discussed. For more on Malthus, see Google search results [google.com].)

    Of course, during his time, he had no idea that technology would ever develop at the pace that it did in the 20th century and that it will in the 21st century. On the other hand, even if he could imagine such unimaginable technological growth rates as we have seen in the last hundred years, no one from his time could imagine such prohibitive measures being taken to prevent technological advancement in today's world.

    The popular opinion regarding Malthusian theory of economic growth is that Malthus had it backwards -- his prediction that man's consumption would strip the earth of its resources failed to consider (1) technological growth and (2) that man's wants and needs evolve as well as anything else. In other words, as our resources change, our wants and needs are at least partially shaped by what we can possibly provide. We adjust to the environment in which we live. (Agent Smith says, "There is another organism on this planet...")

    The question I would like to pose to Slashdot's readership is this: To what degree was Malthus right considering man's habits of mass consumption and self-imposed barriers to innovation such as copyright laws, and to what degree was Malthus wrong considering technological and other innovations? (Hmm. Ask Slashdot?)

    • Critics of Malthus usually bring up the changing means of food production. Technological change has meant that on a global scale (but not always at the local level) food production has more than kept pace with population growth. An objection that does not get as much attention is the fact that bith control methods have significantly altered the demographics of industrialized nations. Most industrialized nations have shrinking populations with no food shortage in sight.
    • Malthus was spot on. Still is.

      Only economists (or 2rd year students of the subject) believe that technological leaps can mitigate ecological disaster.

      They are mostly wrong... and mostly (modern day--post Reagan nutcase example) Republican.

      Econimists also like to plot an amazing amount of disparate data onto one graph and call the whole thing a "curve". What this debate is about is NOT what MALTHUS was warning about. When are the young geeks gonna learn that a semester does not a philosopher/poet/thi

      • are the young geeks gonna learn that a semester does not a philosopher/poet/thinker make?

        What about an associate's degree in philosophy, a bachelor's in political science, and a master's in economics, plus readings of dozens upon dozens of texts -- contemporary and classical -- on the matter(s)? I think the keys to being a philosopher are (1) to keep an open mind and be aware that "I might be wrong just because I can not prove that I am right", and (2) a general disregard for the status quo (or else why

    • you have to wonder how companies are continuely turning to cheaper labour (sweatshops and overseas outsourcing) to increase profits while people who usually are in their target market become unemployed and unable to afford the products they produce. hopefully this makes sense or if it doesnt you can work it out yourself. this in turn increases the gap between rich and poor(er).

    • Ah, thank you. I've often wondered about the background behind the Malthusian proceedures in Brave New World; this would apparently be it.

  • The P2P endgame... (Score:4, Informative)

    by elgeeko ( 671311 ) on Monday May 12, 2003 @10:11AM (#5936131)

    According to Declan McCullagh [politechbot.com] the P2P endgame [com.com] is now approaching and it will be down to congress to sort this out.

    He argues convincingly that the law has been changed in the past by congress when copyrights have been seen to be under threat by a judical decision, so we should expect the same thing to happen here.

    "Pay attention to the endgame. In the 1994 U.S. v. LaMacchia prosecution, a judge dismissed charges against a 21-year-old MIT student who ran a pirate Internet site, saying that it was not a criminal offense to do so under current federal law. Criminal penalties "should probably attach to willful, multiple infringements of copyrighted software, even absent a commercial motive on the part of the infringer," Judge Richard Stearns wrote. Stearns suggested that Congress step in.

    Congress obliged. Three years later, President Clinton signed into law the No Electronic Theft Act, which makes--as I've written about before--copyright infringement a federal crime even if not done for commercial purposes. "

    This is exactly what the judge in the Grokster case has suggested, so expect an RIAA/MPAA sponsored P2P bill in congress sometime soon...

    Karma me!

    • P2P is not infringement. P2P is a distribution technology for copying data. In reality, are P2P networks exploited to get access to and share access to copyrighted materials? Yes. But that's different, and I mean EXTREMELY different, from making running a server with copyrighted content illegal.

      In that case, you are talking about making copyright infringement illegal in all cases, tweaking a law that had a noteable loophole in it. In this case, you are talking about making illegal a technology or di

  • God Help us all (Score:4, Insightful)

    by anthropomorphized ( 567526 ) on Monday May 12, 2003 @10:27AM (#5936269)
    from Lessig's editorial

    no doubt Sony could have designed the VCR to disable the ability of users to record shows from the air. But whether Sony should have been so required was a decision for Congress

    I admire Lessig immensely, and maybe I am reading this wrong, but it seems that he is implying it is a GOOD thing to let Congress decide what uses of p2p should exist. Maybe that is actually better than outright judicial control (it is theoretically easier to change congressional legislation than stare decisis), but I have NO FAITH in Congress to consider the people over the millions of $$$ being thrown at them by the media industry.

    I believe that the recent decision is a step in the right direction, but I can't help but wonder if this is taking p2p out of the frying pan and into the fire.

      • When it comes to issues involving Big Business, I don't trust the Republicans OR the Democrats. I think Gore Vidal said it best, "America, with its one political party, and its two right wings."
        • That's one thing I have never figured out, other than a few libertarians (who never get any press coverage anyways) and Mr. Vidal and his cronies (Who can be found 24/7 on one of the news shows), most people agree that there are two distinct political agenda's thrown to the masses at each election, let's review
          • Abortion
          • Universal Health Care
          • Food Stamps/welfare/AFDC/Job Corps/Head Start (Johnson's Great Society)
          • Social Security (and FDR's new deal remnants)
          • Military budget
          • Gun Control
          • Education (School v
  • There has grown up in the minds of certain groups in this country the notion that because a man or a corporation has made a profit out of the public for a number of years , the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary public interest. This strange doctrine is not supported by statute nor common law. Neither individuals nor corporations have any right to come into court and ask that the clock of hist
  • If I read this right, this supporting constraints only after taking it into court.....

    Well it would be consistant with the practice of the Patent office to issue patents on anything that seems to be filed with the proper paperwork, arguement and other factors (like - Well this party has filed many patents so we are relatively sure they know what they are applying for a patent on). ..... And then letting the courts be the ultimate judge as to whether or not the patent holds up.

  • It all comes down to the vision of property rights (Score:4, Insightful)

    by StillNeedMoreCoffee ( 123989 ) on Monday May 12, 2003 @12:22PM (#5937108)
    Lets be clear first that not everyone agrees on what intellectual property is, or how long it exists. Different countries, different times have had different takes on this kind of property. IP is owned for a time then goes into the public domain. That time was lengthened by congress essentially so Disney would not loose control of Steamboat Willy. The time was lengthened for the rights to be held on this "image" for 99 years I believe, up from what 17 years or 20 years passed the creators death, whatever.

    The Electromagnetic spectrum used to be public domain. Now it is illegal to listen into certain frequencies. Talk about a human construction. Ham radio's in this country can't be sold if they can tune in frequencies that they should not.

    It comes down to business and allowing people to have a monopoy for a time on some business they can profit from. They have lobbied in the governments for that right and have recieved laws to protect those monopolies. But it is a human construction and is not universal. There are peoples that still believe that no one owns land.

    When the trains came in the covered wagon's place was jeapordized. Automobiles caused the horse industry to collapse. When IC's came in, the Japanese transistor radio industry collapsed overnight.

    The Internet has come and we see the frantic attempts by entrenched businesses to hold on to the value of their property, to not change. But I think the bucket has too many holes in it. The recording industry may change its focus to the live concert industry. That at least is a tangible controllable poperty they have. Bands may have to get off they duffs and tour more. Prices may have to go up. Venues may have to get larger, if these captains of industry want to maintain their current level of riches. ....or duck tape.

  • Now, I've been meaning to read Lessig's books. I was waiting for his most recent to come out in paperback so it would be a little more affordable. Seeing his feelings in the FT editorial though, could someone ask him to just post an electronic copy somewhere, because I don't feel like paying $10.50 for it if I don't have to.

    Thanks.
  • In what way would the world be a worse place if music was not protected by copyright?

    Music would be created by talented people doing it for free (bias)like the best software(/bias) and distributed over the net by the people that wanted it. Good music would spread, bad music would die - no artist could ride on past sucess.

    Musicians could get a real job (performing or working in McD's - their choice) and perform their art for art's sake. It might get some of the talentless greedy hacks out of the industry.

  • Music Biz (Score:2, Interesting)

    by McPLUR ( 586375 )
    If every innovator with technologies affecting content must bear the burden of a lawsuit before his innovation can be allowed, there will be many fewer innovations in the distribution and creation of content. That in turn will harm artists and technologists alike.


    What on Gods green earth makes you think that any respectable company would have any interest in doing something like protecting the people or groups that make them money? Why do that when you can simply get laws passed to enforce the way you

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