RIAA Responds to Napster - Raises Serious Questions

Cosimo Leipold writes "The RIAA has placed a reply to Napster's now infamous Motion for Stay. The points they raise are very good and well worth a read. It is very interesting to see the claims Napster made in its early days -- including that you would never find a no-name artist on their search (which they now claim is what they are all about!) -- claims that they can't stop pirated music (though it is explained how it could be done) -- claims they can't ask for copyright priviliges from artists (though they already do -- from "new" artists! -- if they can ask "Joe Blow" they can ask Metallica no?) -- etc. It is a damaging read for Napster. Acrobat Reader required: RIAA PDF"

Re:Moral stand?

I did not state a non sequitur. You introduced a logical fallacy known as a straw man (which you can find on the site that I link to above). The specifics of your straw man are:

1. Pizza parlors were started by the mob (could be true, I don't know).
   
2. Lots of valid business at pizza parlors (true)
   
3. Money laundering is illegal (true)
   

Woefully, points 1 and 2 (which seemed to be going somewhere) do not lead to point 3. Neither does point 3 serve to tie the premise together. It is true, compelling and misleading. Thus, unless you can shed light on what you meant I cannot say that I see this as anything but a logical fallacy.

Again, please construct an argument. Napster is a filesystem over which users share files containing sound. It turns out that, given a filesystem, users will share copyrighted sounds. Really not Napster's problem any more than it's Kodak's problem that child pornographers use their film. I am strongly in the camp that says that the use of a medium where monitoring activity is possible should not lead to a mandate to monitor activity. Digital camaras should not be required to transmit their images to the FBI, phone switches should not have pre-installed taps and Napster should not have to monitor it's users file sharing transactions in order to prevent copyright infringement. These are all, as far as I can tell, the same issue: should the medium provider (profit-making or not) be required to sanitize and/or monitor it's usage?

You appear to believe half of the RIAA's answer (that shutting down services that don't sanitize or monitor is reasonable), but do you believe what I think is the logical conclusion: that sanitization and monitoring should be required? I'm not trying to say that the RIAA wants this (I think they do, but that's just my personal theory for which I have zero evidence). However, they have certainly taken a big first step.

If people start using Slashdot to share uuencoded MP3s, should Slashdot be shut down? What if they advertize that they're the hottest site for discussion forums full of MP3s? What if they say "fuck the RIAA, we have pirated MP3s on our site"? When does it become a problem of the media provider? Is Exodus (Andover.net's ISP) responsible for the MP3s? Should they be sanitizing the bits at the router? Monitoring for Brittany Spears patterns in the HTTP traffic?

You begin a long and slippery slide the way that the RIAA is going. The only thing I think they can justify is pressing charges against the people trading the music and getting a warrant for the logs on the Napster servers. If there's anything there that identifies users, then they could be busted. The problem is that that would mean directly going after thousands of mostly kids. Can you imagine how pissed their parents will be? How long before that turns into an anti-RIAA backlash that could cost the RIAA millions in legal fees? All for what? To punish fans who tend to be good customers in the first place? No, RIAA wants to shut Napster down so that they look like bad-guys only in the short-term and concentrate their legal guns on a single, easy target.

Welcome to copyright in THIS century.

Consider this.

Napster, the application, is not on trial here. The service is not on trial.. the COMPANY is.
The COMPANY is attempting to make money using their serivce. The put up such service, *knowing* that it would be popular *only* because it would be used primarily to help joe average user share his pirated files with someone else. Something that joe average did *not know how to easily do*.

Therefore, napster is in business to help people pirate. Plain and simple.

Sure, people had FTP sites and such... but napster provided a forum.
Is the tool illegal? No. Is the company breaking the law? I'm starting to think so.

Napster is going down...

Heh. Napster makes Microsoft executives look like Saints.

After reading this RIAA brief in it's entirety, they are pissed, and I would say rightfully so.

It's beyond a point where the music industry is going to be willing to work with Napster. This isn't a questionable offense against the business like mymp3.com, this is blatant abuse.

What Napster is doing is unethical, immoral and easily illegal. Napster knows this, and apparently doesn't care and has said so in it's internal documents.

I would have to predict that Napster is going down, they will be shut down and out of business in six months time.

Another important thing to keep in mind, is that alternatives such as gnutella are just going to make Internet regulation worse. If they become a problem, the music industry will come down on them hard as well. It won't be a namsy pansy court case like this DeCSS thing either, it will be a consorted effort.

And if you think it's difficult to do, all they have to do is lobby for Congressional legislation. Warrants for the arrest and confiscation of computers running napster like software will be next.

Don't think this will happen? You just watch.

Re:Sick of RIAA and Napster

Although I cannot stand the RIAA, the more I think about it something just seems wrong about Napster making a profit off of someone elses work.

Like, oh let's see, Amazon.com? Yahoo? Ebay?

If those studies about Napster users buying MORE music than the average consumer are true then there is nothing wrong with Napster making money on providing a service.

If Napster was not doing this is for profit, then it would be an easier case for me. But with Napster doing this as a business, it seems fair that the record companies should get a cut; even if they don't really deserve any more money.

If the information that I referred to earlier is accurate, then the RIAA and the individual record companies ARE getting a cut. They benefit fromNapster's use.

LK

Re:If the RIAA would offer a "legal" alternative..

It's been said before, but the RIAA is just shooting itself in the foot. They need to be working with Napster or creating their own on-line music distribution/sharing system.

It seems so obvious to /.'ers, but the RIAA still seems to miss this point. If I were in the recording industry, I'd be looking ahead as many years as I could to see which way the market is going. I'd be trying to anticipate the market and be an early adopter to collect the marvelous profits that accompany such adoption, done well.

There are now about 5 years of experience out there of moving retail sales to the internet. Electronic-format books and music are lagging because they're worried that the cat will be let out of the bag when they distribute online. But the cat is out already for the RIAA member companies! Every wasted minute is lost profit! You'd think that they'd see Napster's user stats as a potential market that turned to piracy because they were ignored, and act to supply that market.

Again, from the RIAA's perspective, having affordable digital distribution running when they sue Napster would also solve many of their PR problems. "See?" they could say, "you can get what you want for $x per song from us, you pirates!"

The RIAA are handling this in the wrong way, even from the perspective of their own self-interest.

Steve

Re:RIAA is wrong

It would be trivial for Napster to prevent transferring illegally stolen music: simply prevent transferring any file with a valid MP3 header. This would give a few false positives, of course, but I think that's Judge Patel's (and the RIAA's) point: Napster created a monster (Patel's words), and now it is their burden to control it. If there is no effective way to filter out the illegaly stolen music (as there isn't with today's technology), then the only way Napster would not be guilty of contributory copyright infringement is to pull the plug on the services all together.

Re:RIAA Bad. Napster Bad. MPAA Bad. DeCSS Good.

Hmm... while I agree that Napster is technically not engaging in copyright infringement ("Napster...Nothing copyrighted EVER touches their servers"), it's pretty clear that they are set up for, and promote themselves as, a service to facilitate trading of copyrighted material. Where the law is on this, I don't know, but there's a big difference between a service like FTP ("Move files around the 'net") and Napster ("Move MP3 files between you and your friends, leaving no trace").

But yeah - there are copyright laws in place. There are remedies when copyright is infringed. Go after the infringers, and make BIG examples of them.

I do wonder if this is going to turn into the War on Drugs of the 21st century, though....

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Re:Sick of RIAA and Napster

Those studies you refer to prove nothing. They simply state the obvious: many people who use Napster are music buffs, and are inclined to buy more CDs than non-music buffs.

The studies did NOTHING to prove a causation, ie: Napster usage CAUSED the people to buy more CDs. It just proved a correlation, ie: people who use Napster buy more CDs than those who don't.

Until a study is done proving that Napster is the CAUSE of this increase in CD sales, your argument there means jack shit. Perhaps you should read your own .sig again.

A different take: I think I finally get it

I've mostly steered clear of the whole Napster debate. As I see it, it's not really about "the future of music." Nor is it about "freedom from the tyranny of the labels." It's just about the RIAA protecting their rather sizeable assets.

I have my own small MP3 collection which I ripped from my own CD's, which I play on my own computer, and I'd always assumed that most Napster users were like my little brother, who wants to grab some popular, cool tunes so he can hear them on RealJukebox (which he also grabbed for free and doesn't necessarily care how Real, Inc. uses his personal information). So today I downloaded Napster and clicked through the regular encyclopaedic licenses.

Or, at least, I tried to. This time a message popped up that said, "You must read the entire license agreement before clicking OK!" So I did. After the regular legalese protecting Napster, Inc. should my lawn mower run over my neighbor, etc., there's this tidbit:

Unauthorized copying, distribution, modification, public display, or public performance of copyrighted works is an infringement of the copyright holders' rights. [...] As a condition to the license to use the SOFTWARE, you agree that you will not use the SOFTWARE or the Napster service to infringe the intellectual property rights of others in any way. (bold added)

So basically, if I'm to abide by the Napster license, I'm not supposed to download or distribute any copyrighted works over which I have no authorization. This seems straightforward enough. But does anyone take this seriously? Does anyone ACTUALLY believe that Napster users are NOT downloading or distributing works for which they don't have authorization? Apparently not the first 100 people that I got a hit for when I searched for a favorite song of mine.

So what this is really about, then, is 20 million people infringing on an entire industry by stealing that industry's copyrighted works. As far as I'm concerned, it doesn't matter if it's an evil industry. It doesn't matter whether Courtney Love can write a moving diatribe against it. This isn't Robin Hood vs. the Sherrif of Nottingham. This is nothing more than people convienently deluding themselves into the ethics of self-interest.

(Apologies for the excessive use of bold. Yes, I did mean it.)
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Re:Punk Rock vs. Napster

Copyright laws were originally created to prevent corperations from stealing musicians / authors /etc work without just compensation. This works well in book publiishing where copyrights revert back to the author after the first printing. Unfortunatly, the RIAA labels make musicians selll them the copyright outright. I think the only way that traditional music distribution could be fair to artists would be to make it illegal to transfer a copyright away from the original orner, i.e. the labels would only have the rights to a single printing of an album, then it would be the authors. Unfortunatly, the above legal reform seems impossible considering the RIAA's power in cogress.

Now, if you can not fix the laws legally then you should fix them illegally. Musicians like Courtney Love feal that they would make more money if they fans just donated money to them and ignored the record industry---Fairtunes and Upriser are ting to implement a system which allows exactly this. Ideally, people would stop buying CDs and start giving money to artists directly which would totally screw the RIAA labels, thus allowing the artists to broker more benificial deals with their labels.

I think Ms. Love's strategy is a good one. It might work or it might not work, but it seems to be the only real option available to today musicians.. when your getting fucked over bad enough by the establisment then it's time to set fire to the establishment and hope the new order is more to your liking.

BTW> Napster is very very bad since it wants to replace the RIAA's strangle hold on musicians by monopolising the distribution of online music, so we should all try to get people to use diffrent file sharing systems.

Re:Moral stand?

But you cannot shut down all pizza parlors because they can be used for money laundering.

Perhaps you meant to construct an argument [harvard.edu] instead of introducing a logical fallacy [infidels.org].

Selected comments from RIAA's response

All in all, it's a fairly compelling document. I'm not terribly sure how ethically or legally right Napster is. Napster does maintain a database of copyright protected music with the intent to profit (in some nebulous way) from it. But the document still has some interesting thoughts from the RIAA. Some gems include:

The District Court enjoined Napster from infringing plaintiffs' copyrighted works after finding that Napster was actively trying to accomplish the goals laid out in its own early planning documents -- to "usurp" and "undermine" the record industry, "unhindered by cumbersome copyright schemes." Its declared goals also included the following: "[S]eize control of digital distribution. . . . Napster brings about death of the CD . . . Record stores (Tower Records) obsoleted."

Oh my, how dare anyone attempt to "usurp" or "undermine" the record industry and replace it with something else! How dare Napster view copyright schemes as combersome and avoid being hindered by them! How else will the RIAA enjoy it's God given right to make money. Feh. Anyone seriously attempting to change how music is distributed, even with great respect for copyright, will attempt to "usurp" the record industry. Such a company could quite reasonably view record stores as obsolete. This is in no way grounds to take Napster down.

The Court found Napster had no current substantial non- infringing use. Rather, the several purported non-infringing uses trumpeted by Napster -- all of which essentially boiled down to the same claim, that musical artists other than those whose copyrights plaintiffs own use Napster to promote their music -- were minimal, commercially insignificant, and pretextual.

It's nice to know that if you're an artist not involved in the case, you're "commercially insignificant" and as such not deserving of the right to use Napster to distribute your music.

All is not lost, since the RIAA the RIAA generously gives Napster a way to continue hosting files:

For example, Napster could compile a database of song titles and artist names that have been authorized by the copyright owners of those songs to be made available on the Napster service. . . .

(Don't be misled by the "For example", it's the only example they give. The only other options I can see are ineffective lists of prohibited titles or requirining "hindering" copyright protection technology.)

So, if you get a tape from a non-internet saavy friend musician who encourages you to make copies for anyone you want, you couldn't put it onto Napster without getting Napster some official form of authorization. If sending an email saying "I own this and I authorize it" is enough, it will be trivial to forge emails granting permission for the RIAA catalogs. If some sort of proof is required, it becomes an onerous burden for the copyright holder.

Re:Sick of RIAA and Napster

This argument only holds up if Napster use CAUSES more sales. Really, all we know is that Napster users are also record buyers, but the arrow of causation could point the other way -- that record buyers are more likely to use Napster.

It could be shown that Napster users buy a more-than-average number of records in the first place, and that Napster is causing them to buy fewer than they would, although still more than average. Then Napster would be hurting potential sales.

I don't at all know what the truth of the matter is, but the stat that Napster users buy more music than the average consumer is interesting, but really doesn't at all speak to whether Napster use causes more or fewer sales.
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Re:A different take: I think I finally get it

Does your VCR have a big red sign on it that says "you may not use this device to make copies of commercial movies"? No.

You're absolutely right. In fact, the sign is a piece of 8.5"x11" yellow paper which has the notice, and it came inserted into the VCR's instruction manual, rather than affixed to the VCR itself.

Does your photocopy machine have a big red sign on it that says "you may only photocopy copyrighted works for personal research use or archival as per the fair use clause of the Copyright Act"? No.

Actually, it's small and silver, not big and red. But the sign is there.

It is entirely irrelevant if the device is used for illegal purposes (and I have to agree with Mr. Boies that the AHRA permits the trading of copyrighted works in this manner). If it can be used for wholly legal purposes (and clearly it can be and is) then it's not illegal.

Regardless if it is irrelevant to you, legally it is relevant if the device's primary purpose is to break the law or not--that's the legal theory which makes having lock pick sets illegal in some states unless you are a licensed and bonded lock smith. Because the primary purpose for a non-licensed and non-bonded private citizen having a lock pick set is to break and enter--and it doesn't matter one whit how great the gray pick is at getting food dislogged from between your teeth.

One person is a criminal. Ten people are a gang. A thousand people are a movement. 20 million people are a law-making and unstoppable force.

And if those twenty million happen to be wearing army jackets, carrying guns and answer to Saddam over in Bagdad, it's still a law-making and unstoppable force? Or an illegal invasion?

Ethics are tricky. It's not about bullshitting the people around you into doing what you want them to do--it's about setting rules we all can live by. And just because everyone on the road speeds on the highways doesn't mean that speeding isn't illegal and dangerous...

GPL *does* need copyright to exist

This couldn't be more wrong. If there were no copyright, then there would only be two types of source code:

First, there would be public domain code. All open source projects would fall into this category. This code would be open, available, and owned nobody and controlled by noone. Anyone could use this code for any purpose.

Second, there would be code that nobody ever sees. Individuals and organizations who wanted to produce closed-source software would have to shield, obscure, and otherwise protect their code with contracts, usage licenses, and security.

The big difference would be that the public domain code would have no protection whatsoever from being absorbed by closed-source projects. There would be no protection for programmers who wished to enforce their choice of open source development on others.

In a world without copyright (and therefore no GPL) there would be nothing to prevent Microsoft from using any and all of the Linux kernel code in their own closed-source products. Without copyright protection, if your code was open, it would have to be public domain.

It is copyright law, and nothing else, that gives the GPL its teeth. Don't believe for a minute that the lack of copyright protection will somehow eliminate all closed-source software. The truth is, without the protection of copyright, there's no middle ground and we'd see less, not more open-source code.

Anyone who was around and using software in the late seventies and early eighties knows exactly what the software world would look like without copyright. Back when nobody knew what "software" meant, it was very unclear exactly how much protection copyright offered for software. Copyright law took several years to mature and adapt to the computer revolution and during that period the growing pains were sharp and harsh.

Would we really want to return to the days of dongles, hardware copy protection, usage contracts, and burdensome licenses? Without copyright, that's what software houses would have to fall back upon to protect their intellectual property. It wasn't until copyright established itself in the software world that we were finally able to move past those cumbersome and ineffecient methods.

If this concept bothers you, ask yourself why? The foundation of the GPL is that programmers should have the right to dictate how their code is used. If you accept the GPL, you accept that a programmer has an inherent right of control over their code that they can then be able to say "this code should never be used in a closed-source program".

How is it that programmers should have this right and musicians should not? Why should software have protections that music should not? Shouldn't a musician have the same degree of control and be able to say "this song shouldn't be made freely available"?

the riaa's real motives

The RIAA completely ignores the argument that napster can be used for discovering new music because they don't want people to discover new music. They want people to buy their britney spears crap. They don't want people to know there are other kinds of music which are not produced by major labels

Why doesn't anyone seem to understand that? They perfectly know that no one steals from them and that napster helps them sell more CD, the problem is that they don't help only them, they also help all the "underground" labels.

Piracy began with the RIAA, not napster

They began stealing from the public when they expanded copyright from anything reasonable, when they declared war on fair use copying, and when they have such a monopoly on distribution that artists have no choice but to sign over their rights

The guerrela warfare reaction is the public's response to corporate theft.

It might be technically illegal to break into my neighbor's house to steal something, but if that something was originally stolen from me, and the neighbor has bought off the police so I can't get it back, then technicalities be damned, I have the moral right to retrieve it.

The RIAA have stolen my public domain rights, and stolen artists' rights, and they are suffering the consequences.

Did you see the news about Louis Prima's estate and Disney? Disney says that even though they pay royalties for audio recordings of The Jungle Book, they don't owe royalties on video recordings, even though there is an audio track, because the contract didn't specifically mention the new technologies.

Do you *still* claim the congolmerates have any rights? Do you *still* claim they protect artists?

--

But it IS Robin Hood and the Sherrif

The media conglomerates have abused the copyright system. They have stretched it far beyond any reasonable interpretation of being for the public good. It used to be 14 years plus a 14 year extension, now it's 75 years after the author dies. They want to stop fair use. If anyone proposed libraries today, they would scream about copyright infringement.

In other words, they are stealing from the public, using the force of the government to back them up. This has nothing to do with artists' rights and everything to do with theft from the public domain.

They have declared war on the public, and the public is fighting back in the only way possible. The public has overreacted, but the RIAA started the war. When the powerful push the weak too far, the weak fight back in the only way possible. Like the Brits prior to the American Revolution, there comes a time when the oppressed have had enough, and after all these years of overpriced overpadded CDs, the consumers are reacting.

The future involves priceless distribution. The RIAA can no more stop it than King Canute could stop the tide. The RIAA would be better off getting in bed with Napster than trying to kill them, but they are so short sighted they don't see it. They will die.

On another take, how much do you really think the conglomerates are actually losing? Your little brother -- how many of those tunes could he have actually bought? That's the only cost. You can't say he has 100 CD equivalents and that's how much they lost.

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Re:Sick of RIAA and Napster

That is not the point. Napster is making money off of somebody else's product without providing any sort of payment for the use of that product. If I ran a site where people could download scans of textbooks--for which I made a profit--don't you think the publishers would be annoyed?

The RIAA might be making money out of the whole deal with increased sales of records, but if you don't protect your property, you might lose it. Napster is also guilty of some double-standards (thatr have been discussed on slashdot), so I have a hard time feeling sorry for them. Remember that lousy music group they sued for trademark infringement after the group started selling clothing with the Napster logo? Napster might get more visitors when people saw the illegal shirts, but Napster sent off their own cease-and-desist letter....

P.S. on the definition of theft

I will probably be misunderstood :-( so I will amplify a bit.

I don't mean it's ok to download the mp3 instead of buying the CD, and I don't mean it;s ok to install AutoCAD in lieu of paying. For instance, if someone installs AutoCAD because they want the "best", instead of buying a cheaper competitor, then there is a real loss, although not to AutoCAD. If someone buys a harddisk and fills it with mp3 instead of buying the CDs, there is a real loss, and to the artist.

My point is that most of what the RIAA calls theft is no such thing because there is no monetary loss, or any loss whatsoever, because the hundreds of mp3s downloaded by starving college students are not in lieu of buying a CD. I doubt the actual monetary loss is more than 1%. I bet it is compensated for by people like me who use mp3s to find interesting music and buy the CD. I doubt the RIAA wants to bring either of these factors into the equation.

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Re:GPL *does* need copyright to exist

In a world without copyright (and therefore no GPL) there would be nothing to prevent Microsoft from using any and all of the Linux kernel code in their own closed-source products. Without copyright protection, if your code was open, it would have to be public domain.

This is where things get confusing. Why would Microsoft want to take source code from Linux and keep things closed-source? Without copyright law, Microsoft would be unable to sell software per se. They could still print their own CDs and stuff, but there would be competition, since their software could be distributed without restriction, so their prices would remain low. The only reason I can think of for why Microsoft would not release the source code is so that they could have a monopoly on technical support. Judging on Microsoft's past behaviour, I guess this isn't too far fetched, though.

The point is, though, you can't just assume that if copyright were to be abolished, the software industry would carry on as it is. It's RMS's opinion that if there were no copyright (and thus there would be no market for software per se), then software developers would not want to keep their source code hidden: there would be no benefit. It's his opinion that software would be distributed in much the same way that GPL software is distributed today. That's why the GPL is designed the way it is.

Of course you can argue with him. Maybe if there were no copyright law, some people still would keep their code locked up. I can't see any benefit in that, but it's possible.

Napster being used for piracy?

Quoting Claude Raines from Casablanca..

"I'm shocked... shocked..."

Not much more to say.

Over the last few months, we have been back and forth on this Napster issue so many times on /. that I can only express my feelings by stealing a lyric from The Beatles:

Nothing you can know that isn't known
Nothing you can see that isn't shown
Nowhere you can be that isn't where you're meant to be
It's easy
C'mon, everybody sing it with me now!
All you need is love
All you need is love
All you need is love, love
Love is all you need.

That about covers it. There is indeed nothing you can say, but you can learn how to play the game.

Uncle Toms missing the point. (Was:RIAA Bad.)

Look, I dislike the English as much as the next guy... but the fact is, clippers are used mostly (not exclusively) to pirate tea, and that's bad. Yes, the King needs to see the writing on the wall that representation is the way to go and that He can't gouge colonists. But that doesn't mean that John Paul and the rest of those pirates are a good thing! They're both in the wrong.

Cheap tea is not a right. The colonist's rights are not being stepped on. Maybe you buy more tea because you tried Jefferson's stuff first... so what? It's still not a right. King George is bone-headed, but He's not wrong on this issue.

It also alarms me that people get this issue confused with freedom of religion, housing militia, etc... these have nothing to do with what the pirates are doing. Religion and housing are about control, using your own property as you wish. Running clippers to get past the British is about making money for Jefferson and his friends, not freedom.

Moral stand?

Regardless of Napster's motivations for creating Napster, the service itself is not illegal. There are legitimate purposes for Napster, therefore Napster should win.

RIAA is pulling a moral stand here, trying to assasinate Napster's character. If Napster is a greedy, corporate entity like RIAA says it is, I'm still going to root for them over the greedy, corporate entity of RIAA!


Refrag

I think Napster's defense is intact

The core of Napster's defense is, as the RIAA correctly points out, section 1008 of the AHRA.

From the brief:

The AHRA balances the interests of manufacturers, consumers, and copyright owners by plac[ing] restrictions only upon a specific type of recording device, specifically defined in the statute, requiring such devices to be equipped with copy protections and that royalty payments be made based on their sale, and exempting consumers from copyright infringement lawsuits for private uses of AHRA-covered devices:

No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of

a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings. 17 U.S.C. 1008

In RIAA v. Diamond Multimedia Systems, Inc., 180 F.3d 1072, 1074-1075 (9th Cir. 1999), this Court squarely held that [u]nder the plain meaning of the [AHRA's] definition of digital audio recording devices, computers (and their hard drives) are not digital audio recording devices... Diamond also held that MP3 files contained on computer hard drives are not digital musical recordings. 180 F.3d at 1076-77. Thus, under Diamond, a computer is not a covered device, and a copy made by one Napster user of an MP3 file residing on another Napster user's computer hard drive is not a copy of a digital musical recording, and is not covered by Section 1008. 17 U.S.C. 1001(4)(A).

Here is the RIAA's bait and switch.

The bait:

The question being addressed in the Diamond Multimedia case was whether or not computers and MP3 files are "digital audio recording devices" and "digital musical recordings" for the purpose of determining whether those devices were required to implement SCMS.

The switch:

The RIAA is claiming that only activities using devices and media covered by the SCMS and royalty requirements are protected by 1008. Unfortunately for them, they have made this up out of thin air.

The appeals court directly addressed this argument in lifting the injunction. From the text of the stay:

The court reached its conclusion that Napster users were engaged in direct infringement in part because ...

o it ruled that 17 USC 1008's protections only applied to copying by specifically identified devices rather than, as this Court said in RIAA v. Diamond Multimedia Syst., Inc., 180 F.3d 1072 (9 th Cir. 1999), to all noncommercial copying by consumers.1

1 The court relied on the fact that this Court in Diamond Multimedia had held (in the context of the AHRA's serial copying and royalty provisions) that digital audio recording device did not include computer hard-drives. The court below ignored, however, that 17 U.S.C. 1008 permits non-commercial copying by consumers using either analog or digital audio recording devices or "such a device"; that the legislative history makes clear that Congress intended by that language to immunize all non-commercial copying of music by consumers; that the same Diamond Multimedia Court expressly said that 17 U.S.C. 1008 "protects all noncommercial copying by consumers of digital and analog musical recordings" (180 F.3d at 1079); and that throughout the Diamond Multimedia opinion the Court discusses copying of music using computer hard-drives as AHRA protected activity.

The RIAA can of course continue to pursue their failed legal theory in this highly symphathetic lower court, but if the lower court finds in favor of the RIAA for this reason, the appeals court has all but said it will overturn a finding based on such a theory.

The other key point in Napster's defense is the argument that the activities of Napsters' users are non-commercial. The RIAA claims that Napsters are engaging in commercial activity:

See also 17 U.S.C. 101 (defining "financial gain" for purposes of criminal No Electronic Theft Act to include the "receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works")

The RIAA can argue this point all they want to, but I don't think that they can make the case. This law simply forbids "quota" or "ratio" requirements, nothing more. This is not how Napster works. When someone makes files available on Napster, there is no expectation that they will be rewarded for their contribution by being given subsequent access to other files. When someone downloads files from Napster, there is no expectation or requirement that they make files available in return. Napster is probably the only possible file sharing system that is absolutely, authentically non-commercial with respect to its users' activities.

The RIAA reply goes on to try and prove that users of Napster are not engaging in fair use. This is irrelevant because Section 1008 does not say:

A fair use defense may be raised against allegations of infringement of copyright based on ...

It says, instead,

No action may be brought under this title alleging infringment of copyright based on ...

If the activities of Napsters' users are protected by Section 1008, then the rest of the RIAA case disintegrates. If Napsters' users are not committing infringement, then fair use is not even an issue, and Napster cannot be liable for contributory infringement if there is no actual infringement.

In short, I don't think that the RIAA has made their case. Their counterargument is based on the exact legal theories that the Appeals court firmly rejected in overturning the injunction.

Re:Let's set things straight

"It's the same thing as sueing Apache because people are using it to distribute mp3s."

No it's not. In the case of Apache, far more people use it as a legitimate web server than as a mechanism to distribute MP3s. The primary purpose apache is used for is NOT MP3 distribution. In the Napster case, the exact opposite is true. Napster is used almost exclusively to transfer copyrighted material. The primary purpose something is used for is very important when determining its legality. The only real defense Napster has is the Audio Home Recording Act, but even there they are standing on shaky ground.

That being said, I still think it's pointless to go after Napster. Winning won't change the status quo.

-Vercingetorix

Re:Moral stand?

Later on in the document, they make a comparison between Napster and Sony producing VCR's. Sony argued ( apparently successfully) that their involvement ended the moment the VCR was sold, and they were not responsible for any copyright violations that were done with the VCR. However, Napster is providing an ongoing service, and obviously they need to preserve the supply of pirated music in order to keep their users coming back.
What I'm wondering about is what happens when 90% of the software I use resides on a network host. I already use calendaring and messaging over the Net, pretty soon all of the software I use will be "service" in the sense of having the ongoing support of the company that sold it to me. What if I use, say, hotmail to send out song lyrics to all my friends, or maybe to a whole mailing list of people that have signed up to get the lyrics from me. MS is providing a service to me that allows me to pirate lyrics; where does one draw the line between this and the Napster service. Obviously, Napster wasn't created with or used for pure goodness, but there will come a time when a pure site is used for bad things, and then we've got ourselves a distinction to make.

Walt

Nope, but the Benz has a real physical cost

If the Mercedes could be produced for free, and your theft didn't prevent anyone else from buying one, I would have very little problem with your theft. But there is a very real physical cost. Just as there is a physical cost to an actual CD -- I would never condone stealing a CD from a store.

But bits? No cost there, other a few seconds of server time.

I see no theft in copying bits which you would never buy anyway. If you copy AutoCAd and play with it, but could never afford to buy your own copy, AutoCAD hasn't lost a cent. Where is the loss?

It used to be common for office workers to install Microsoft Office at home so they could work at home nights and weekends. No doubt they also wrote letters and recipies and resumes. Is there theft in any of this?

Here are counter examples. Suppose you are handing out coupons on a street corner. Suppose someone grabs one before you have a chance to give it out? Suppose someone takes two? Is either of those theft?

Suppose a store sale says "2 per customer" -- is it theft to go back several times and buy two each time?

How about contests "No purchase necessary" -- what if you enter a dozen times?

How about radio contests -- "12th caller wins!" -- is it theft to use a fast redial button? Is it theft to have your computer redial even faster?

--

Sick of RIAA and Napster

Although I cannot stand the RIAA, the more I think about it something just seems wrong about Napster making a profit off of someone elses work.

If Napster was not doing this is for profit, then it would be an easier case for me. But with Napster doing this as a business, it seems fair that the record companies should get a cut; even if they don't really deserve any more money.

The MPAA case is a lot easier; they (the MPAA) are clearly in the wrong. But the RIAA have some valid points, and they are sounding more valid all the time.

Gnutella, on the other hand, is not a business and is therefore exempt, IMHO.

Re:Moral stand?

If someone robs a bank, and then gets away on a bus, does that put the bus driver at fault? I guess it depends on whether or not the bus driver knows the robber has just robbed a bank and is making his getaway. If he knows, he's legally and morally obliged to refuse the robber admission, to stop the bus, drive to the police station, whatever. But if he doesn't know the robber's identity, I fail to see how he could be guilty of aiding and abetting the robber.

On the other hand, you wouldn't want a bus service setup which has routes from banks to state lines avoiding police stations, and drivers who don't ask questions. So I guess it also depends on how well the service lends itself to helping the illegal activity, and the proprietor's knowledge of this.

To drag the analogy back into reality, whether or not Napster is guilty of aiding and abetting copyright infringement depends on whether or not they are aware their service is being used as such, and that it may lend itself well to copyright infringement. Based on what their current attitude appears to be, it seems as though they're aware that their system is being used for copyright infringement, despite their service agreement, and that they're not interested in fixing it.

RIAA's response well reasoned

You should be shocked. Those folks at the RIAA actually have a reason for what they are doing! They are right - using Napster harms the artist. Using cigarettes harms your health. Both industries (the pirated music industry and the tobacco industry) will attempt to deny it; or claim that their users are at fault. In many ways, the parrellel between the industries is perfect.

While the RIAA may not be the best model, it certainly stands for one thing - copyright protection. Even that Linux kernel which you find dear is protected under the same copyright. "My enemy's enemy..." and all that: the RIAA stands in defense of basic copyright. Not even software licensing or anything legally questionable, but simply the copy protection part of copyright that's been at the heart of copyright law for many many years.

While I don't like the RIAA's business decisions, it's the same as if Microsoft were forced to defend their copyright. Of course we would want them to win; our beloved GPL defense rests upon the same things that Microsoft's EULA rests upon. While we may not like Microsoft as a business, I'd find it hard to condemn Microsoft for defending its copyright. Same with the RIAA>

Napster's cards

I hate to say it, but Napster has not played its cards well. It picked fights with people who are more equipped than it. Now, it's in court and in trouble, doing damage to personal autonomy and freedom of speech.

It should have played the "Microsoft Java" card - and done what Microsoft did with Java. Make partnerships. Pretend to play along. Pretend to be friendly - all the while dragging its feet, and ever-so-slightly pushing the bounds of that friendship.

Sure, Microsoft ended up in court over Java, too. But it was a diffent battle - it was a battle over standards, not a battle over freedom. Had napster "played friendly" with the record labels, instead of confronting them, they would be in less heat now, and still doing what they've been doing.

pt

RIAA Bad. Napster Bad. MPAA Bad. DeCSS Good.

Look, I dislike big corporations as much as the next guy... but the fact is that Napster is used mostly (not exclusively) to pirate music, and that's bad. Yes, the RIAA needs to see the writing on the wall that digital distribution is the way to go and they can't gouge consumers... But that doesn't mean Napster is a good thing! They're both in the wrong.

Pirating music is not a right. You're rights are not being stepped on. Maybe you bought more music because you heard it on Napster first... so what? It's still not a right. RIAA is bone-headed, but they are not wrong on this issue.

It also alarms me that people get this issue confused with the DeCSS issue... DeCSS is demonstrably not used for pirating (and isn't necessary). DeCSS is about control, and using your own property as you wish. Napster is about making money for themselves and their stock holders, not freedom.

Making money

Could someone please explain to me Napster Inc.'s idea on how it makes money? All I remember was a memo from their offices a while back making one of their goals 'destruction of current CD distributors, e.g., Tower'. Is this company just so chock-full of idiocy that they jumped into a product with no viable method of making money? Or are they such megalomaniacs that they thought they would be the forefront of a music 'revolution' in which artists would require their services to be heard?
P.S. If you're on napster right now, go get the song 'Megalomaniac'. Pretty damn good.

You are more than the sum of what you consume.

RIAA is wrong

RIAA quoted on page 28, how Napster can block unauthorized music. The flaw in this is that every music that has to be traded on napster has to be approved. if i wanted to share the mp3 of the trax i just rawked up 5 minutes ago, I have to go through process of having napster approve it. the other flaw in this is that the protection uses artist name and music title. what stops me from distributing metallica's song under a new free artists name? nothing! hence, napster is right in maintaing that they don't have the technology to block all unauthorized mp3s. i am very disgusted at the paper.

Re:Sick of RIAA and Napster

"Although I cannot stand the RIAA, the more I think about it something just seems wrong about Napster making a profit off of someone elses work.

If Napster was not doing this is for profit, then it would be an easier case for me. But with Napster doing this as a business, it seems fair that the record companies should get a cut; even if they don't really deserve any more money."

IMHO, they're not making a profit off other people's work. They're making a profit via investors for creating a useful and powerful tool.
Napster doesn't have any banners, doesn't charge, etc. Of course they need money! How else would they keep servers used by 20 million people up and at a decent speed?

They may not be making money currently, but do you think all these VC guys are throwing money into Napster because they think it's a worthy cause? Napster has a plan to make money. What they are doing right now is getting users "addicted" to it, so when they do put banner ads or charge for it, a good portion of the people who already use it will keep using it. There is a lot better chance people will keep using Napster when they add ads/charge for it if they have been using it for months for free. I feel sorry for you if you really think Napster is doing all this out of the kindness of it's heart.

Re:Moral stand?

Regardless of Napster's motivations for creating Napster, the service itself is not illegal. There are legitimate purposes for Napster, therefore Napster should win.

Regardless of The Mafia's motivations for creating the pizza parlor, the pizza itself is not illegal. There are legitimate purposes for pizza, therefore The Mafia should win.

Guess what? Money laundering is still illegal.

--

Re:Moral stand?

But character is important to the consumer.

I mean, most of us will openly admit that Napster is unethical, and we'll also openly insist that the RIAA is unethical.

So I sort of think that if we were doing the Right Thing, we'd boycott them both. Otherwise, we're boycotting an unethical organization because it's preventing us from doing something unethical.

I guess we're justified, but it doesn't exactly make us all saints.

Re:A different take: I think I finally get it

Actually, the intstitution of speed limits in the 1970s was based more on a national oil shortage than anything else. It had very little to do with safety.

Here's my theory: speed limits create accidents. For example, if everyone drove at speed infinity, the avg. amount of time a car spent on the road would be 0. Therefore, the average amount of cars on the road at any given time would be 0. Therefore, the number of accidents occurring at any given time would be 0. As the speed decreases, cars spend more time on the road, and there are more accidents. You can call this one Stu's law.