Napster Bans Metallica Fans

W00dDuCK noted that Napster has banned the 300,000 users that Metallica reported were pirating copyrighted music. Moments later, all 300,000 created new accounts. This isn't over yet.

Could they sue Metallica for libel?

Napster : Metallica say you are trading in stolen property. We're closing your account

You : You bastards! That's libel*! I only trade in free mp3s from my own group Spametallicarr! I'm going to sue!

(* or is it slander? I forget)

Re:CNET article

This [napster.com]also had a little more info on it, straight from Napster.

kwsNI

Re:Could they sue Metallica for libel?

They COULD aim for the much-nicer "perjury" charge. The Metallijerks signed an affidavit that a copyright violation had occurred (even though they hadn't actually downloaded the MP3 to check), so anyone who was sharing "Enter-Sandman.mp3" and it was a live recording that, say, THEY owned the copyright for (or really anyone other than E/M Ventures), then Metallica committed perjury in claiming that they HAD committed a crime.

Perjury is SO much more fun. In fact, I suspect it could POSSIBLY get Lars deported, since he's not a US Citizen, and egotistical enought that he probably signed the paperwork himself (with a flourish).

No bots

When I log into Napster, it says, quite clearly:

"NO BOTS ARE ALLOWED ON THIS SERVICE. IF YOU RUN ONE HERE, IT WILL BE BLOCKED AND YOUR IP WILL BE PERMANENTLY BANNED"

So will Napster be blocking NetPD's bots?

Standing in the way of the avalanche...

So all the bad little Napster users that downloaded Metallica MP3s had
their accounts killed. Of course this didn't fix the problem, nor did it
even help remedy it.

While I don't like Napster, this isn't the way to go.

You want to stop Napster? You have to shut them down completely.
Heck that won't even stop the problem: Gnutella and Hotline and every
other $WAREZ_TRADING_SOFTWARE will still be out there.
What needs to be addressed is the cause. I suddenly have this image
(gods I'm a geek) of Leia standing in front of Grand Moff Tarkin telling
him, "The more you tighten your grip, Tarkin, the more MP3s will
slip through your fingers."

Something needs to be done about the reason people go after MP3s
(collecting, its a counterculture/rebellion thing, they're thieves, they're
fed up with the low quality of the music industry, the industry rips
everyone off--artists and customers).

Banning 300K users from Napster is just like the trying to stop an
avalanche. You can't do it just by standing in the way.

--Ruhk

--

How does the Rio ruling affect this?

As I recall, when the courts ruled in favor of the Rio, one of the ideas was that `fair use' entitled you to maintain a copy of the media. Furthermore, the judge in that case implied pretty strongly that you had a right to a copy even if you did not make it yourself.

In other words, what these fans did would seem to be illegal if and only if they did not own a legal copy of the media. I just remembered something from the CNN story this morning: apparently, according to Metallica `the straw that broke the camel's back' was that their newest song, which has not even been released on CD yet, was being pirated. Possible, the reason it broke the camel's back was that it was impossible for anyone to own a licensed copy of that song yet since they weren't selling it.

Possibly, this ruling is not as far reaching as we are being led to believe.

Am I missing something? Any lawyers out there (Hawk, you're the man)?

--

From the mouth of the beast

Under the section. "Why do CD's cost so much?" [riaa.com]

...For example, the most significant cost of a CD today is the marketing and promotion of that music. To learn more about why CDs are a great value -- check out Cost of a CD. [riaa.com]

I, for one, am tired of paying for marketing. Why am I paying for someone to tell me what I like?

Oh, BTW, their closing argument for this defense.

By all measures, when you consider how long people have the music and how often they can go back and get "re-entertained" CDs truly are an incredible value for the money.

Thanks for your opinion, RIAA, now I'll go form my own.

--

Re:From the mouth of the beast

Under the section. "Why do CD's cost so much?" [riaa.com]

That argument fails when you consider that cassettes of the same material have a lower retail cost and a higher production cost. The same marketing costs applies to both products.

The question should therefore not be "why do CDs cost so much?" but "Why do CDs cost more than cassettes?" Same music, same production and marketing costs.

The price they set is what the market will bear. People are used to paying more for CDs because in the beginning (mid 80s) there was a serious shortage of plants cranking out blanks. That is no longer the case. The cost to manufacture a CD is far less than cassettes.

But the market is not "bearing" the cost obviously. The illegal trading via napster is an example.

There is a deep irony in this, proven through people of my (baby boomer) generation. When I was a teenager in the 70s, I couldn't afford to buy records. I copied stuff off the radio, taped friends' records onto cassette, and listen to the stuff over and over. If I didn't have access to that illegal copying, I'd have never had grown so fond of groups like Led Zepplin, The Who, Rolling Stones, etc, etc...

Now look at the market. Baby Boomers are damn loyal to the groups they grew up with and spend a ton of money buying their CDs, going to their concerts, etc. I blew $150x2 just to see the Rolling Stones at Vet Stadium in Philly in the cold pouring rain in April a few years back. (It was pathetic too, a bunch of old fucks trying to relive their happier younger years... and no, I'm not talking about the band! :)

The point is, did I rip off these bands when I was a teen by copying their stuff? Yeah, technically, but not literally. I could barely afford gas to fill my car at the time. Trust me, I had no money to buy anything like that. If I didn't bootleg it, I would have went without.

But now look, the "Classic Rock" market is a HUGE and very profitable market. Now days, I often buy CDs on impulse and very often never even get around to listening to them. I'm too damn busy to bother hunting down mp3s on the net to copy.

Kind of ironic, no?

If Metallica turns off their young fans now, when their young fans are older and making money like mad, they won't be spending their money going to a Metallica reunion concert in 2010.

The world is changing. Musical artists should almost give away their work to get exposure, then make their money on public performances, marketing of products, endorsements, etc, etc... the kind of stuff you can't digitally copy.

Open Rock baby! :)

This Weeks Geeks In Space Homework Assignment

Here's a suggestion for this weeks Geeks In Space homework assignment:

- Create a new account on Napster.
- Make an MP3 of yourself talking about how you feel about this whole Metallica issue.
- Make multiple copies of the file.
- Name each copy after Metallica songs, including one that just says 'Metallica.mp3'.
- Start sharing your creations on Napster.

Now let's see how they justify banning an account because Metallica says you're pirating their music , when all you're doing is talking about Metallica?

Of course, they'd probably consider that a moot point. But it was just an interesting thought.
---
icq:2057699
seumas.com

Re:Technology can be closed.

A geek is running for president! Al Gore ... he is a geek in every traditional sense of the word.

[boggles]

[gulp]

[boggles again]

[looks at the poster and carefully backs away]

Dude! Do you have any clue, any at all, about what a geek [tuxedo.org] is?

[sighs and goes away sadly shaking his head]

Kaa

Metallica can't even spell 31337!

317,377 users? I think they mean elite users.

Online legal form...

Very confused about the legality of the form on Napster. I could fill that in (I don't even use Napster) with the name and address of a banned person. No signature, just text...

Another point. If I, as a British Citizen, were banned, how would the DMCA apply to me ? If the transaction took place between myself and a person in Germany why is a US rule being applied ?

The phrase "can of worms" comes to mind. And of Napsters form the phrase "half-arsed" presents itself.

Re:CD cost a factor in this fight

Talk about timing... Read this story about lowering cd prices [msnbc.com] on MSNBC.

Re:How do they now that the music was pirated?

Um... redistributing a radio recording is not legal either, AFAIK.

"Made available"

The notice to bad users states that Metallica has accused them of making available Metallica music, not actually trading it (which brings up all the "I'm putting this here for people who own the CD, it's not my fault they download it"). NetPD has no way of tracking user to user transfers, they can just do a search on Metallica like everyone else, using a 'Bot to save all the resulting users. Maybe they could even do something fancy like search on the titles of all the albums and tracks too.

It doesn't seem likely that they could somehow eavesdrop on user transactions, since the transactions are distributed, only the database of available songs is central.

Re:This is ridiculous

So people should not use Napster unless it expressly allows them to pirate material from artists??

Also any band that objects to piracy should be boycotted as a protest to the fact that they actually might want you to pay for the record that they invested time and money producing.

If people use Napster for the purpose they keep bleating on about (ie. listening to free music and small bands who are trying to build a fan base) rather than the majority use which is pirating then they have nothing to worry about. Of all the people I know using it I would say that less than 40 percent of the commercially available music availabe is owned by them legally. I have some friends who have even stopped buying music because they can get it free now. But then again the freeloader problem was always a product of consumerist society...

Technically this makes the music industry a highly imperfect market, and the only answer now is nore legislation... Or bands going out of business.

I can't wait

As someone tracking this story very closely on my own site, I can tell you that a popular item of discussion in this whole sorry state of affairs centers around the all-important question:

What EXACTLY is the "secret recipe" used by NetPD to determine someone is a "MEtallica Pirate"? And, seeing definite vagueness regarding the TOS of the Napster agreement with regards to bannable activity, what's going to happen when a group amoung these 300,000 ex-fans decides, instead of simply recreating Napster accounts, decides to challenge Napster's assertion that they were actually in posession of Metallica tracks? This is just a sordid state of affairs.

OFFTOPIC, and I apologize, but if you want to get even more pissed off at the music business then read this article [theswindle.com] reporting on a bill before the US House Of Reps. that would declare ALL published artistic musical work "work for hire". This is a VERY, VERY bad thing, arguably just as bad as the War on MP3 - but it's NOT BEING COVERED IN THE MEDIA. Yet.

Re:CD cost a factor in this fight

no, where can I get there mp3?

Good news, very good news

Here are a few other bands whose fans should be banned:

Nine Inch Nails (like heavy metal without the talent)
Rush (think they're clever, but aren't)
Hootie and the Blowfish (shit name, shit band)
AC/DC (the single least musical bunch of morons God ever created, and disgustingly sexist to boot)
The Grateful Dead (shit beyond shit)
The Beatles (the Britney Spears of their generation)
The entire country of Australia ("I come from a land Down Under, where the only band is a one-hit wonder)

And in general, anything else I don't like.

Re:Is there any legitamate use for napster?

Have you ever heard of the Grateful Dead? Even Metallica lets people trade LIVE recordings There are tons of live Metallica nd Grateful dead recordings available through Napster. What Metallica want to stop is the trading of STUDIO recordings.

Re:Could they sue Metallica for libel?

Ain't going to happen.

Are you kidding? this case is prima facie:

Yes, judge. I suffered irreperable harm to my name when Metallica had my Napster account cancelled. My friends and associates ridiculed me

because now they know I listen to Metallica and am a pathetic looser. I am now outcast."

Every judge on the bench would believe that claim :)

well...

Moments later, all 300,000 created new accounts.

Not exactly. But even if that's true, you just got yourself 300,000 pissed off Napster users. Three quarters of them probably got another account right away. The rest probably looked into other file-sharing programs, like iMesh, CuteMX, and Gnutella.

Now imagine if Metallica gives them another 200,000 names next week. Rinse, dry, and repeat. And perhaps, other musicians will join in.

I still think what Metallica doing is ingenious (I think what they're doing is evil, but still ingenious) - by calling Napster's bluff, they showed other musicians that:

1) you can waste many man-hours of Napster Inc, especially when you deliver them 300,000 usernames on hard copy.

2) create a massive inconvenience for Napster users, which might drive them away to other solutions, and decrease Napster Inc's revenues.

I guess Napster won't be having their IPO anytime soon. Doh.

Go get your free Palm V (25 referrals needed only!)

Silly NetPD

Metallica is stupid and so is anyone who tries to fight this. I think most users will understand that Napster's arm was twisted to make them ban users. And the users will just create new accounts. However, Metallica has just pissed off 300,000+ fans. Think those people will EVER buy a Metallica CD now. At least before, people could have liked the MP3 and then purchased a CD. Metallica has just shot themselves in the face and made their record sales worse.

NetPD is not too smart either. When the CTO was interviewed, he wouldn't even give a simple idea on how it worked other than the metaphor that it is like 5,000 humans in a room searching for the info. Which means his little plan will fail. I think most people know that if your algorithm is so secret that you can't tell anyone, then you are doomed. I give that software maybe a month (that's generous too) before someone gets a copy, disassembles it, and writes a patch for Napster. Then, I would like to see where NetPD sees it's sales. Get a clue guys, there is nothing any company can do to stop MP3 because there is a HUGE wave of millions of people behind it with a combined force that is greater than an company could ever mass. Look what happend to DVD and their secret algorithm.
_________________________
Words of Wisdom:

Can electronic form be a binding document?

In spite of all the notices on the web page that the counter notification form [napster.com] is a legally binding document, I don't see how it can have any validity in court.

I see no obvious way a form could be linked in court to a specific Napster user unless the user testifies they submitted it. There's no authentication that the name and address entered belongs to the person completing the form. There's no authentication by any obvious strong cryptographic means, no witness's signature, notary, or anything else normally associated with a legally binding document, let alone one where the alleged signer starts giving up their legal rights.

I suspect anyone could submit a form on behalf of any napster user. (Those more familiar with Napster's registration process are welcome to correct me). Yes, that's possibly perjury, but could someone sumbitting a false form be tracked down with only an IP address to find them?

I don't listen to Metallica, so I'm not directly involved in this issue. But I wouldn't fill out the damn form if I *was* blocked inadvertantly. It feels to me like replying to the opt-out address in SPAM email. If someone wants to sue me, they can use the traditional methods to find and serve me. (Been there, done that, my attorney and I are waiting)

IANAL, standard disclaimers apply.

Egregious misreading of the bill

reporting on a bill before the US House Of Reps. that would declare ALL published artistic musical work "work for hire"

The comment is flamebait. If you actually go (like I did) and read the bill (go to Thomas [loc.gov], search for S. 1948, then look at Sec.1011), then go and look at the actual US Code [cornell.edu] which it references, you will see the following:

A ''work made for hire'' is - [...] (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work [the change incorporated from S. 1948: as a sound recording], as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire [my emphasis].

This does *not* mean what the author of this comment alleges that it means. No copyrights are ripped away from any artists. It still requires that an artist agrees that the work that he or she is doing *is* a work for hire.

The 1976 updating of the Copyright Act holds that the mere creation of a work of art confers copyrightholder status on the creator. A significant legal action is required to transfer copyright to anyone else. A further legal action is required to certify that a work is being done "for hire".

This really *was* a technical amendment updating Title 17, Sec. 101, Para. 2 to include sound recordings as an area in which work for hire *might* be done. It is *not* a wholesale taking of intellectual property as was alleged by the author of this comment.

3,000 Worms May Turn on Metallica

This can of worms is incredibly fascinating.

The DMCA allows anyone to easily force an ISP (or something like Napster) to kick off others by alleging copyright violations. However, the catch is that, if you are wrong, you face the penalty of perjury.

Metallica/NetPD admit that the list may not be completely accurate. Let's say that it is 99% accurate. That still leaves 3,000 people kicked off unfairly. If those people were to hit back, Metallica/NetPD would be faced with serious risk of massive perjury.

Takers?

My account is gone - Can I sue Metallica?

My account is gone, I tried to login and couldn't. (I'm assuming it's because of this.)

I scanned my MP3 drives and the only thing I have with their name in it is

f:\mp3\misc\friends\Mark - Covering Metallica - Enter Sandman.mp3

For them to get me kicked off of Napster, they have to be alleging a criminal violation of some sort, and I don't think me having a copy of a garage band's music is a criminal violation (at least on my part, I have no idea about covers in general).

So, can I sue them for defemation of character or something? Or at least to get them to go to Napster and reinstate my account?

I think defamation has to have damages and be public, but there's got to be something appropriate for this case.

For certain though, I'll never buy another MP3 from those thieving bastards again. Another example of a big company (or band, backed by a big company) throwing their legal weight around and crushing anyone who gets in their way. Fuck Metallica, and fuck the RIAA.

Steve Albini's famous rant

I believe that this piece first appeared in Maximum Rock and Roll about five or six years ago. In it Albini exposes the finance mechanisms behind a major lable record, including an sample balance sheet:

http://www.interstate40.com.au/NEWS/Nov_Dec/Troubl e.htm

(I found this particular URL by doing a google search: '"Steve Albini" trouble music')

Anyhow around the same time I first read this I was enrolled as a grad student in Music Business at Columbia, where I was taking a course with Irwin Steinberg, the guy who founded Mercury and later Polygram.

He was totally convinced that the majors were about to take a fall, because as soon as real artist realized that they could distribute there music for free they would, since they usually wind up loosing money on a major label deal anyhow.

It's funny buy in the class they actually gave us copies of a major label contract, and ran us through the negociation process, and yes, the whole thing is designed to make the artist think they are making money from the records while actually making them NOTHING!

So why would anyone make a major label record?

People who make the decision to sign with a major are usually following one of two lines of reasoning:

1. (the smart ones) A major label record will get us a ton of exposure, and we'll make a lot of money when we tour.

2. (the stupid ones) We'll sell a bunch of records and get rich.

Obviously anybody thinking either way about this is couting on the label to do a lot of marketing work, and that the marketing is going to provide the exposure, but really anybody who is confident that their music is truly worthwhile and is savvy enough to be thinking along the lines of the first line of resoning would not be at all threatened by mp3s, napster, the hacker ethic or whatever.

As for those following the second line of reasoning, I think everybody can agree that the music scene will be alot better off without "musicians" who make music in order to "get signed and get rich".

Wanna prove that our way is the right way? Try this (if you have some cash):

Find some band or DJ or whatever that you really really really like that hasn't been signed to a major label, and offer to pay for a recording, so long as you can give the recording away in mp3 form, and more importantly under a licence like the GPL which will prevent somebody from signing them later and taking the recordings back.

The artist still owns the songs themselves, only the recordings will be gpl'd (or equiv.) That way they will still get the paid for radio play.

Of course they (or anybody else) can put the record on a CD, with or without nice cover art and shrinkwrap (whatever).

Build a fancy website about the group, put the recordings up in their full form, and start telling people about it. If the music is as good as you will get lot's of hits and can sell ads, and the band will start getting a bigger turnout at shows, and can start reqiring much much larger amounts from venues. Everybody wins.

Technology can be closed.

So, do you think the government will just sit back and let it all happen ? Give up their futile fight ?

I don't think so. This stuff will go too far and eventually the internet will be regulated.
How do you regulate the internet you ask ?
What is happening already. Make ISPs responsible for their users. When a few people have been sued for doing what the government consider illegal things on the net, other people will think twice. This bop the mole is bullshit. A lot of people will not be willing to take the risk.

You can argue that the more people who stand up to them the less chance they have. Bullshit. You can live in your little cyber world all you want, but when the feds come busting through your door in the real world, you will soon know reality.
And when some guy name bubba wants you for his personal love toy, what then ?
Don't think that you can do what you want on the net. You can't break the law and get away with it. Even if the law is wrong.

While there have been some cool new technologies like mp3, violating copyright is against the law. And it looks like people will be made to pay. While I agree that the mymp3.com and DeCSS are a fiasco, and I don't think they violate any laws in any way, the metallica issue is different. It is copyright theft on a mass scale

Just wait until the government catches up with technology and excersises its iron grip. The internet makes you easier to trace, you leave an electronic pattern whatever you do. Anonyomity... bullshit. Slap a court order on the owners of the server who gave you your anonymous email address / dynamic ip and bingo. Server logs are pulled, who was dialled in then, who got that ip allocated.... etc etc.

Live in the real world people. Not this fantasy that the internet will change governments etc....

CD cost a factor in this fight

Folks,

As I said earlier, the whole issue with Metallica versus Napster points out the fact that music buyers in general are suffering from a case of sticker shock buying new CD's.

Right now, if you go to a "brick and mortar" music store the average price of an album-length CD is about US$15 to US$17, and already there is talk of the price going to US$18 very soon. Even the online music stores like CDNow.com, Borders.com, and other can only knock a few dollars off this high price.

Given that the duplication cost per CD is measured at about 35-50 US cents (that's including packaging), something tells me that the Recording Industry Association of America (RIAA) and its member companies may be conspiring in a price-fixing scheme to keep prices high. I mean, just how many middlemen are we paying in order to get the price of a CD to US$13 to US$17 per disk?

In my personal opinion, this is a true case of monopolistic practices, because the customer _is_ being hurt by a possible artificial high price by an OPEC-like cartel of record companies. Maybe lowering the price of an album-length CD to US$8 to US$9 will definitely help things along, since not only will there far less incentive to pirate the music, but also there will be substantially more volume sales of _legitimate_ CD's. Anyone who's taken a course in microeconomics can figure that out pretty quickly.

Re:No bots

I wonder if they can change that statement to something like "NO BOTS ARE ALLOWED ON THIS SERVICE. IF YOU RUN ONE HERE YOU WILL BE SUBJECT TO FINES OF UP TO $5,000,000 PER INCIDENT" and sue the hell out of NetPD...

-- Dr. Eldarion --
It's not what it is, it's something else.

Damn!

Well, my friend just told me he got banned. Tried to create a new username called FUCKMETALLICA , but it was already taken. fancy that...

Brick and Mortar

IANAL, but here is what's funny:

Metallica explained that these usernames had made available for others to download materials that Metallica claims infringed its copyrights.

At the same time, Best Buy and any other Brick and Mortar retailer makes their CD's available for me to steal. Along with Napster, because the opportunity is there does not mean people take advantage of it. Which is along the same lines of people getting something without paying for it. So, I guess I'm waiting for Metallica to deliver a list of all the Best Buy stores to Best Buy, Coconuts stores to Coconuts, Musicland to Musicland etc...

Some may say that this is different because it's making it easy to and encouraging people to steal with Napster. I say they haven't talked to enough suburban 14 year olds (sorry DJ Jazzy Trevor, I didn't know the food court was your turf).

<SARCASM>Oh wait, that's right this is the way of the future, and we should be scared of it.</SARCASM>