White House Files Amicus Brief Favoring RIAA

declan writes: "The Clinton administration is siding with the entertainment industry to shut down Napster. It just filed a 37-page amicus brief (WP file) in the court case, saying Napster can't use the Audio Home Recording Act of 1992 as a legal shield. The brief says 'the activities of Napster's users do not even arguably come within the terms of the statute' and the district court's ruling should be upheld. The Justice Department, the Patent and Trademark Office, and the Copyright Office signed the brief. By way of possible explanation, a colleague has compiled this handy list of entertainment industry contributions to Democrats. :)" While that's a clever jab, it hardly seems fair to lay the blame at the political party involved here. Seems more like a question of Establishmentarianism -- politicians in office like to remain there, and know about both corporate bread-buttering and the importance of appearing reassuringly normal.

From the brief mentioned above comes this convenient view of reality:

" ... Neither a personal computer nor its hard disk constitutes "a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium. Napster itself does not suggest otherwise."

They can make that claim not because it's true in a larger sense (obviously, your computer can make a fine recording device -- ask at any music store), but because, as the brief goes on to say,

"The terms 'digital audio recording device' and 'digital audio recording medium' are specifically defined in the Act. A 'digital audio recording device' is defined, with exceptions not relevant here, as any machine or device 'the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use.' 17 U.S.C. 1001(3)"

If you define your terms correctly, black is white and 2+2=5, too.

The strange bedfellows clause seems in full effect at the moment; remember that just weeks ago, an industry group including AT&T and other unexpected Napster allies filed their own amicus brief favoring the other side, on the reasonable basis that the controls the courts would be declaring acceptable under the DMCA would soon if not already impinge on activities of nearly any large digital carrier.

Those Damn Napster Stories

I think it's time for a Napster category, like Anime or Transmeta or whatever. That way /. readers who aren't Napster fans / foes can exclude these stories like they do with JonKatz, and we can also track the story or kill time more easily by clicking on the logo.

sulli

Re:Brilliant. Guns kill people, and Naster is ille

a=guns
b=people

Premise: a kill b.
Action: Make a illegal.
Result: a can't kill b anymore!

a=Napster
b=files
c=people

Premise: a copies b illegally.
Action: Make a ilegal.
Result: c can't copy b illegally anymore!

They're not equal arguments.

Specifically the lawsuit wasn't filed with the intent of keeping people from copying files. It was filed with the intent of keeping people from using Napster to copy files. Yes, there are other ways of accomplishing the same task, but Napster is likely the current most common method of copying mp3s.

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Re:plain facts on head, I think

The AHRA (Chapter 10 of the Copyright Code) uses a very sensible definition of the devices it covers and does not cover. I assume you read the first sentence of Section 1001, which says that the meanings are provided for terms as they are used in that chapter, not as they are used in the language at large. It seems like a reasonable convention to me.

Let me give another (somewhat random) example, from 7 U.S.C. 6802 [cornell.edu] (2)(A)(ii), regarding "Fresh Cut Flowers and Fresh Cut Greens Promotion and Information" (whatever):

The term "cut greens" includes all cultivated or noncultivated decorative foliage cut from growing plants that are used as fresh-cut decorative foliage (except Christmas trees) and that are produced under cover or in field operations.

So, even though all the Douglas firs I've had as Christmas trees I've are clearly "greens" and certainly "cut," they're not cut greens. Even if I don't celebrate Christmas, it doesn't count -- because it's traditionally a "Christmas tree." Well, that's why the definition is important. The choice was made by the drafters of the law not to apply it to Christmas trees. They didn't do that accidentally. The definition is just a way to avoid repeating the applicability constraint dozens of times.

My point, of course, is that the definition of terms embodies the intent of the law. It provides a context and scope for the legislation, which is good. The AHRA seeks to narrowly define (thank goodness) the devices it covers. Maybe I'm assuming a level of sophistication that I shouldn't, but that seems sensible to me, and that's why I didn't understand what your contention was.

Re:Stop With The Napster Stories

Since you invoke the gods of my favorite temple, ECON 101, you live or die by their grace:

CDs cost too much There's no law that says ...

actually, there is a law that says monopolies and price-fixing cartels are illegal. The major record labels just caved on such an case, all but admitting guilt, and other lawsuits against them have been filed. They've been illegally keeping prices artificially high fro a long time. Perhaps they reap what they sowed.

Information wants to be free. What the fuck does this mean?

It means two things: in ECON 101 you learned (or apparently did not) that in a competitive market, price will drop to marginal cost. Since copies of information in the digital age have a marginal cost of zero, it can be seen that information does indeed want to be free. The high prices of CDs indicate thas some other non-market forces must be at work. Second, the other meaning is that if you teach me something, why should I be restricted from teaching it to someone else since that costs you nothing? Consider mankind in prehistoric times, or children on a playground: they learn from each other, and it's a good thing too. That's what "it's a free country" means. You need to make the case for restricting freedom, and I don't think "because it makes a small number of people rich" is good enough, nor does the argument that the information would not otherwise be produced... there has been music for as long as there have been people. The only new aspect are the robber barons.

Indie bands give away music

Actually, my response to this is that every interview you hear/read coming out of Hollywood has the creatives telling us how it is their calling: they write/act/dance/sing because they can do naught else, it's the very fabric of their being. So, since they're not in it for the money, why give them any. At least make them admit they are a bunch of lying money grubbers first.

The RIAA rips off artists. So if they are already getting ripped off then that makes it OK for you to rip them off?

Huh? MP3s get ripped from the ripper off-ers.

then why isn't it OK for corporations to incorporate GPLed code in their closed source products? After all information wants to be free

you are slyly restricting the meaning of free, excluding freedom. If GPLed code is locked away, it is not free. It's only free if they grant the same freedom to their customers... oh, that's that's the GPL.

if it is OK to pirate music then it is OK to pirate software after all the rhetoric is the same and information wants to be free.

not exactly right, but you are on the right track. It's OK because it is not piracy to steal from pirates. And a number of the points I raised speak to the actual circumstances, not just the fact that people are selling copyrighted material. Look at video rental: nobody bothers to rent and copy videos because they don't cost much. But people often bring food to the movie theater because of the price gouging.

Furthermore, when the people think the government of the society they live in is corrupt, the idea of taking matters into their own hands is enshrined in our (US) Declaration of Independence. Interestingly, the corruption then was the same as now, protecting the interests of fat cats at the expense of the unenfranchised. Every lawsuit we see seems to be settled with Big Marketing Companies being allowed to buy and sell data about us, and stuff our mailboxes with spam, and still more illegal to take the cover off the box and see how they are spying (violation of ECON 101's perfect information axiom) or price fixing.

Now this is unusual...

There's a very odd mix of cluefulness and cluelessness in this brief.

Some of the things here are dead-on. The AHRA was never intended for something like this, that is for certain. And certainly, many of Napster's users are engaging in copyright infringement (whether or not Napster should be held liable for that is arguable, but it's also not the point of this post).

However, it goes on to say a few strange things. First, that copying an MP3 is not "making an audio recording." This is, in a word, absurd. While it is true that no audio plays when you copy a file, the fact remains that the mechanisms used in copying an MP3 from one disk to another are, for all intents and purposes, identical to those used in copying audio from one DAT to another This can be very easily demonstrated. Furthermore, no one disputes that MP3's contain audio (Wrapster notwithstanding, and even then they contain audio of a sort). Since DAT-to-DAT is considered making an audio recording, it is unfair to apply a double-standard by saying that copying an MP3 is not. Does this make it right or legal? Not in and of itself. But it is what it is.

Second, it claims that a hard disk is not an audio recording device. This in and of itself is basically true. However, they say it's not an audio recording device because AHRA excludes devices on which computer programs are stored. However, it's quite possible to have a hard drive containing only MP3s; I don't doubt that many Slashdotters have just such a setup. What is the disk, then?

I'm not trying to say the article is pointless. It raises several good points about AHRA and the fact that Napster shouldn't be using this to defend itself (neither should it be responsible for the actions of its users, but that's for another post). But some of the reasons they're giving for it are just plain dumb.
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Well Napster does....

make an illegal activity much easier than it is without Napster. The current sharing model that Napster uses *is* illegal. That having been said it was also illegal for Rosa Parks to sit in the front of the bus and it also was illegal for those guys in Boston awhile ago to dump all that tea in the harbor. Very rarely is social change brought about by keeping the law. Now would most of the people using Napster think that they are helping to change society? Hell now most of them have never thought about it that much. But they are. Information may not want to be free but it sure does tend towards that state. As much as the RIAA, MPAA, and of course the government will try to maintain the current system they will fail and the people and the artists will have much greater control over their own lives and work. As a result of the current mess that is Napster we will get micropayments and all that and it will be good. IMNSHO

definition of theif is culture- and time-based

Its users are thieves.

interesting how the definition of theif changes over time.

it was ok for Gates to ripoff DOS in those early days. most people in-the-know do consider Gates a theif. but he got away with it, didn't he?

think back, oh, maybe a few hundred years ago. courtisans played music for their kings. if one heard a song that wasn't theirs, was it "theivery" to play that song for your king? I seriously doubt the concept of royalties [sic] applied then.

I guess what I'm saying is that today, the music industry has drilled it in our heads that its quite natural to pay every time you want to listen to music; even if its recorded music. oh, it wasn't so blatant when the labels organized; they'd charge you for the recording on the media and whatever you did with it was your business. but now, more and more, we're moving to a "you don't own it; its only on loan from us and we can change the terms at any point" system. I don't see ANYTHING natural about the current fee-based system. I say we go back to the roots of music; you get paid when you perform - period. if someone records the music, touch tittie - its out there and there's nothing you can do about it.

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They're right

The brief the White House has filed is not a 'shut down Napster' argument. It simply states that Napster should not be allowed to use the Home Recording Act as a legal defense (which is one of the many defenses Napster has put forth.)

This is a VERY good thing.

If the court was to eventually rule for Napster on those particular grounds, the decision could eventually be used as a precedent to, among other things, collect royalties from PC makers for every PC sold to benefit the RIAA- and that's just for starters. In the long run, such a result would be a disaster for everyone involved *except* Napster, Napster users included.

If the appeals court, or, eventually, the Supreme Court, does eventually find in favor of Napster, it will hopefully do so on other, unrelated grounds.

Re:definition of theif is culture- and time-based

"Microsoft purchased the rights to QDOS free and clear. There was no theft involved. "

This is from http://www.aaxnet.com/topics/msinc.html [aaxnet.com] :

1982 - Digital Research sues Microsoft and IBM - DR wins. It was obvious MS-DOS and its PC-DOS variant were simply rip- offs of Digital Research's CP/M operating system. It remained only to prove it contained DR code. DR's Gary Kildall sat down at an IBM PC supplied by IBM and, using a secret code, got it to pop up a Digital Research copyright notice.

It's case won, Digital Research received monetary compensation and the right to clone MS-DOS. This is why Microsoft never sued DR over DR-DOS, but used every other means to destroy it. The settlement was under a strict non- disclosure agreement, so few even know DR sued, never mind that they won.

Digital Research was purchased by Novel and destroyed by neglect and mismanagement. The products now belong to Caldera, which has filed suit against Microsoft over predatory practices used to destroy DR-DOS's market.

Well, here's a suggestion...

one of my pc's is JUST for audio use

...why don't you file a counterbrief with the court saying exactly that?

The main problem I have with a lot of Slashdot posters is that they like to bitch and moan about things to look wise and intelligent to the moderators, but they never do anything constructive about the issues brought up.

Re:Well Napster does....

The current sharing model that Napster uses *is* illegal.

Of course this isn't the case, any more than ftp or the world wide web is illegal. The shared model may be legally used in various ways, and it is this capacity for legal use that makes Napster's conduct noncontributory, per the Sony Betamax case.

The Ninth Circuit has already stayed the injunction on the ground that there remained substantial questions on the form and the merits, and there are sound arguments (not addressed by the White House brief) why the judge's preliminary ruling should be overturned.

So relax, be cool, and don't presuppose the legal battle is lost. Time will tell.

Likewise...

If you listen to the Radio (Streaming music source) and you change the channel when the commercials come on, the act of changing the channel should be considered an illegal one. You are listening to the intellectual property of the artists, but you are not playing fair and listening to the commercials which pay for the music. Further likewise, you should not get up during the commercials to get a beer or take a leak during the superbowl. The whole business model is built on the assumption that the consumers are watching the ads. By undermining that model you are being subversive and should be labelled a criminal.

"I did not have . ."

(wagging finger)
"I did not..have..sexual relations..with that drummer...Mr. Ulrich."

Re:A fair trade off??

Have you been to a good concert lately? There are thousands of people that paid $45 or more just to watch the band play for a couple hours. These people go out and buy the band's outrageously overpriced cds. Do you really think that they would balk at forking over a few bucks directly to the artist rather than the record company? Hell no. They'd jump at the chance. I know I would. There are a lot of bands out there that I really like and respect. I wouldn't hesitate to buy their cds and other merchandise. I just can't stomach the fact that the vast majority of the money i'm paying for cds now goes to the record industry which spends most of its time trying to figure out ways to screw me over and take further control over the music I buy. Give me a way to get the music I want directly from the artists and I'll be a very happy person.

A note to the /. editors:

As a fairly regular /. reader, I enjoy the issues brought up and the usually hotheaded discussions that ensue. However, the quality of editorial opinion IMHO has gone down since I first started reading a year and a half ago, and this is something I'm concerned with, since the editors of /. tend to have an overwhelming say in matters on this board.

For example, CmdrTaco recently aired his opinion that George W. Bush can, in not so many words, go suck his nuts. Since there was no evidence or even argument offered to support such an ad hominem attack, a large number of /. readers pointed out that if an editor moderation system was in place, his comments would easily have earned a large number of -1: Flamebait tags.

My concern with your comments appears in this sarcastic comment: "If you define your terms correctly, black is white and 2+2=5, too.". Now, there is no possible way no matter how you define the terms that 2+2=5, or that total visible light spectrum absorption (black) can be the same as total light reflection (white). But I don't really have a problem with factual errors, because I've grown accustomed to them in /. as well.

What I am concerned with, just as in the Bush example, is that such comments add nothing valuable to either my knowledge or to the discussion, i.e. is a waste of time. Instead of pointing out that there are systems that are primarily built for audio use (specialty audio systems used for recording, or even CD MP3 players) you instead make flippant remarks to simply try to point out how stupid the other side is. This is not news, and it is certainly not stuff that matters. Such comments can and do incite posters (as flamebait) that in fact hinder rational and constructive discussion, and I would ask you and the other /. editors to either take the time and effort to make constructive editorial comments, or to not make them at all. If that's too much to ask, then there are many, many others in the /. community who are willing to try.

Stop With The Napster Stories

Enough is enough. Anyone with a brain can tell that Napster is not about free speech, consumer/artist rights or civil disobedience but about robbing people of remuneration for their time and expense.

For months I have watched people on Slashdot justify violating copyright with crap like

1. CDs cost too much
   There's no law that says you must own all the latest music. Humanity has lasted centuries without Metallica and Britney Spears, and the fact that you can't play their music at anytime will not kill you. People in third world countries don't hear the latest songs and I don't see them dying of "lack of music" so where does this feeling that you have to have popular come from.

1. Information wants to be free.
   What the fuck does this mean? If it costs money to produce then money will be charged for production (this is ECONS 101). It costs a doctor nothing to look at a rash on my hand or listen to my cough and get a diagnosis, but it costs money for me to get this service. Guess why? It cost a lot of money to imbue the doctor with his knowledge and to provide the doctor with medical equipment. The only information that wants to be free is information that is valueless.

1. Indie bands give away music
   Yes, to gain mindshare. Every indie band that is doing so, is doing this so as to obtain mindshare similar to all the Loss Leader dotcomms whose business plans are routinely trashed on slashdot

1. The RIAA rips off artists.
   So if they are already getting ripped off then that makes it OK for you to rip them off? The current system favors independent artists who instead of selling their souls to the RIAA create their own brand and market themselves. Such as my [triplesix.com] favorite [cashmoney-records.com] labels [nolimitrecords.com]. The Napster regime will only favor Napster. The artists make no money while Napster reaps funds from selling demographic info and advertising to 20 million users.

This is my response to all the Napster loving slashdotters. If it is OK for you to violate copyright laws by illegally downloading RIAA sponsored music, then why isn't it OK for corporations to incorporate GPLed code in their closed source products? After all information wants to be free and they should be free to do whatever they want with the information in the GPLed code.

I guess that violates the intention of the authors of the code similar to how downloading copyrighted music from Napster violates the intentions of the copyright holders.

PS: Supporting Napster is no different from supporting w4r3z d00d5. If it is OK to pirate music then it is OK to pirate software after all the rhetoric is the same and information wants to be free.

Re:Stop With The Napster Stories

CD's do cost too much; that's why I stopped buying them. Unfortunately, CD sales are going up, so obviously someone out there didn't get the message.

I quote: '...though we say "All information should be free", it is not. Information is power and currency of the virtual world we inhabit, so mistrust Authority.'; points for identifying the quote.

You can read the lengthier version in the actual Cyberpunk Manifesto, but I think this is what we mean when we say "Information wants to be free", or more generally, "All Information should be free"...

Actually, lots of bands give away music. I realize that radio is paid for by advertisements, but that money doesn't go to the artists; the publicity does. And yes, the RIAA does rip off artists, and I favor any system that cuts them out of the picture. Hence, me not buying CD's...

Napster won't make any money from me trying to sell demographic info; what makes you think I'd give it to them? I have no idea what their privacy policy is, either, but there's something else that needs some work...

Also, nowhere in your argument do you touch on copyright or downloading. Napster provides a service much like Samba or FTP; it's a file-sharing protocol. And once you pick a file to download, it's a point-to-point transaction. The only people involved in violating copyright law are individual people, and they might or might not be doing this on a case-by-case basis. However, in many cases, the RIAA offers no recourse even *to* copyright holders.

Let us assume for the moment that when I buy a tape, I'm actually just buying a license to listen to that music. Does that mean that I can trade in my tape for a CD? What rights do I have? If I buy a CD, and rip the mp3's, and share them, can someone else who bought the tape download my mp3's? They should have a license for the same music, and therefore no violation could take place. If I'm wrong here, please explain why in detail, because if I *didn't* buy a license, then I'd be pissed. That's how copyright is supposed to work, and that's how the RIAA claims it does. If it doesn't, well, CD's should be easily $8 cheaper, and freely distributable, or the RIAA should be sued into the ground for not giving us our rights in the first place (a class-action suit for damages over the past 50 years should cover it, thank you. This includes the consumers and the artists.)
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pb Reply or e-mail; don't vaguely moderate [ncsu.edu].

Well, you can actually define terms that way

Errr... overall good post...however...

: "If you define your terms correctly, black is white and 2+2=5, too.". Now, there is no possible way no matter how you define the terms that 2+2=5, or that total visible light spectrum absorption (black) can be the same as total light reflection (white).

Let +: ( R x R ) -> R be defined

+(x,y) = x (+) y (+) 1 where (+) is standard addition; x,y are in R

As shorthand, we write +(x,y) = x + y

Theorem: + is a binary operation on R

Proof: Let x,y be in R. Then x+y = x (+) y (+) 1 is in R as (+) is a binary operation on R

x + (y + z) = x + (y (+) z (+) 1) = x (+) (y (+) z (+) 1) (+) 1 = x (+) y (+) 1 (+) z (+) 1 = (x (+) y (+) 1) (+) z (+) 1 = (x + y) + z

Q.E.D.

Theorem: (R,+) is a group.

Proof: Exercise left to another poster.

So in this algebraic structure, 2 + 2 = 2 (+) 2 (+) 1 = 4 (+) 1 = 5

OK, here's where I draw the line.

I don't mind if Napster loses on the grounds that 99.999% of their content _is_ copyrighted material being exchanged. I agree that this is wrong: that Napster is a mechanism allowing music trading under fair use on an inconceivably vaster scale than anyone imagined. However, for that very reason I can see the inevitability of those rules being changed.

I do mind if Napster loses on the grounds that music file exchange is against the law. I will be dependent on music file exchange to advertise my music to listeners who might then buy a CD from me direct. You _cannot_ argue people into liking music. You have to play it for them and see if they like it... if music exchange over the net is forbidden that leaves only radio- and it's damned impossible to get on radio, even if you _are_ a major label act (but not 'doing tonnage').

I _particularly_ mind if it is made illegal to rip audio CDs under fair use. I am determined to allow people to do that with my CDs. If this is ever called into question I will unhesitatingly conspire to solicit illegal CD ripping, by encouraging people to make mp3s or whatever out of my CDs, just as I always have. I foresee a time when the RIAA wins against Napster and goes on to make all CD ripping illegal- and that's when they begin really stepping on _my_ toes.

If I was then taken to court for this, I would have intense satisfaction in testifying that I produced all the music, bought the CD blank (paying a tax to the RIAA in doing so), burned it myself, made the label which says 'noncommercial copying OKAY' on it myself, sold it to the customer with the full intention of permitting them to make as many copies as they wished- and then I would ask, what exactly is the justification for forbidding me to do this? It's my music, CD, burner and customer, and I already paid tax to something that does me no good at all and only takes money from me to give to my competition.

In a way I almost hope all this comes to pass so I have such a chance to put a common sense situation before the courts. I already dislike paying tax on CD-R media to prop up the RIAA which is trying to destroy me- the next step is clearly for them to forbid consumers from ever ripping CDs, or exchanging any sort of digital music over the net, and they _will_ escalate it and keep pushing until that state is reached- and at that point they are legally blocking my right to set DIFFERENT terms for my 'music customers', ones that I might feel are not only fair but are a damn good selling point assuming they like the music anyway.

Things are bad, but I promise, they could be _much_ worse- and I'm committed to operating as a direct-selling recording studio legally, going underground does not hold any appeal for me at all. I have a _right_ to sell my CDs and deal with their IP as I choose, they are mine and I am copyright holder and that gives me the right. I will know _exactly_ when the RIAA goes over the line, and they are treacherously close to it right now and could go unbelievably far over it, and probably will.

Again, I don't mind if Napster loses- because I am thinking of the _intent_ here, and obviously the RIAA labels have _no_ intent to share music, obviously the wishes of those copyright holders are being totally squashed. They should be respected- this makes COMPETITION and allows people (arguably more savvy people! ;) ) like me to specifically allow such trading- giving us traders a big advantage, giving our music MORE VALUE because you can do more with it and you can make copies of it and put it on a server for when you travel and etc etc etc the sky's the limit.

Certain types of IP law will over-reach, not only respecting the RIAA labels' wishes, but denying the wishes of someone like me through legislative action. And _that_ is where I draw the line. Let the RIAA do _whatever_ with the stuff they own- but keep their *&&^$^@#& hands off MY property!

Old Joke

This is even on topic, but I'll leave you the reader to work out the moral of this story.

------------------------
A couple went on vacation to a fishing resort up north. The husband liked to fish at the crack of dawn; the wife preferred to read. One morning the husband returned after several hours of fishing and decided to take a short nap. The wife decided to take the boat out. She was not familiar with the lake so she rowed out, anchored the boat, and started reading her book.

Along comes the sheriff in his boat, pulls up alongside and says, "Good morning, Ma'am. What are you doing?"

"Reading my book," she replies as she thinks to herself, Is this guy blind or what?

"You're in a restricted fishing area," he informs her.

"But, Officer, I'm not fishing. Can't you see that?"

"But you have all this equipment, ma'am. I'll have to take you in and write you up."

"If you do that I will charge you with rape," snaps the irate woman.

"I didn't even touch you," grouses the sheriff.

"Yes, that's true ... but you have all the equipment ..."
------------------------

Re:definition of theif is culture- and time-based

you can place whatever word-spin you want on it; it still boils down to my having to buy and re-buy music whenever the media changes.

I bought LPs. I bought cassettes. I bought cd's. damned if I'm going to rebuy THE SAME MUSIC yet again - I've already paid for the same performance several times over. (I know many people who double-paid, trying to replace their albums with cd's. if that's not double-paying, I don't know what is.)

I don't claim to know the subtleties of copywrite law; my point is that property laws change over time based on how society at that time views things. why, not long ago, it was legal in the US to own another human being. that law got changed since society gradually evolved to something better than it was. now there's a re-thinking and re-evaluation of what society is willing to pay and re-pay for. just saying that we once thought it was ok to pay royalties for past performances doens't mean that's the way it will always end up being.

--