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Napster's Execution Stayed; Not Fair Use

Hemos posted more than 13 years ago | from the getting-the-word-out dept.

The Courts 269

Many people have sent in the breaking news from C|Net that the Appeals Court handling the Napster case wants to have the Napster injunction modified. The court website is throughly bogged, but the quick and dirty analysis is that Napster can continue to operate. Update by J : I've listed a couple of mirrors below if you can't get through to the court's site. I have some more comments below; the court's flat-out statement that "Napster users do not engage in fair use" is of special interest.

Mirrors:

As Michael Sims points out, these 22 words are probably the most important portion of the ruling; everything else is technical details and window-dressing:

"...the record supports the district court's conclusion that Napster users do not engage in fair use of the copyrighted materials. We agree."

That doesn't look good for those who want to swap copyrighted music peer-to-peer. That same comment could probably apply to Gnutella users, for example. Brace for impact.

Moving on to the case of Napster specifically and what will happen in the immediate future...

The court found that the injunction is simply too broad in its current form, but bounced the case back to the district court with instructions, essentially, on how to do an injunction properly.

They were quite clear that an injunction should be issued to stop Napster:

The district court correctly recognized that a preliminary injunction against Napster's participation in copyright infringement is not only warranted but required.

But then went on to explain why the current injunction must be limited to the extent that Napster fails to comply with Metallica-style "here is the list of bad files" warnings. Only in such a situation can an injunction stand:

We believe, however, that the scope of the injunction needs modification in light of our opinion. Specifically, we reiterate that contributory liability may potentially be imposed only to the extent that Napster: (1) receives reasonable knowledge of specific infringing files with copyrighted musical compositions and sound recordings; (2) knows or should know that such files are available on the Napster system; and (3) fails to act to prevent viral distribution of the works. ... The mere existence of the Napster system, absent actual notice and Napster's demonstrated failure to remove the offending material, is insufficient to impose contributory liability.

I'm not quite sure how this could be enforced. Obviously, anyone can rename any MP3 "metallica-master-of-puppets.mp3" and Napster is not capable of acting to prevent distribution of same. What Napster can do is kick users off the system who have been shown to be pirates. And since they have shown their willingness to comply in the past, I'm not sure whether the court will ever find that Napster will "fail to act."

Finally, there was this simple comment:

Napster may be vicariously liable when it fails to affirmatively use its ability to patrol its system and preclude access to potentially infringing files listed in its search index.

cancel ×

269 comments

Re:Opennap? (1)

Anonymous Coward | more than 13 years ago | (#437731)

no.

open your eyes. Most opennap servers are offshore. US law can't reach them. That's the beauty of the Internet -- one country's ridiculous interpretation of "freedom" and "ip" and "infringement" doesn't amount to a hill of beans.

The internet treats US court rulings as damage, and routes around them.

Contributory Infringement (1)

Anonymous Coward | more than 13 years ago | (#437732)

Last i checked, it's not illegal for me to go around telling people where to buy drugs. nor is it illegal to write a book telling people how to make pipe bombs. can anybody tell me why Napster is considered differently

Because the issue is copyright, not drugs or bombs. Copyright law contains a special case, unlike other laws, where a person may not directly violate it, but still violate it in a "contributory" sense.

Thus, if you tell someone where to buy drugs, you are committing "contributory drug marketing" but that isn't against the law, because there's nothing in the drug laws that talks about it. When you tell someone where to get copyrighted materials, you are committing "contributory copyright infringement" and it is against the law, because there's something in the copyright law that talks about it.

Re:The key paragraph (1)

general_re (8883) | more than 13 years ago | (#437738)

so all they are saying is that Napster is still going to be shut down, it's just that the original decision needs to be a little less broad reaching.

Exactly...after skimming it quickly, they're dead. Period. It's just a matter of time now, and a very short time, barring a miracle (i.e., a further stay from SCOTUS). Not very likely...

Am I stupid, or is the decision full of errors? (1)

tommy (12973) | more than 13 years ago | (#437740)

I don't feel like reading the whole thing, but in the 30 seconds I spent reading I saw these mistakes. To be fair, I am not sure on points 1 and 2.

1. They call MPEG the Moving Pictures Expert Group. Isn't it Motion Pictures Expert Group?

2. Was MP3 really created in 1987?! Why didn't I know about it?

3. MP3's are encoded, not ripped. Audio tracks a ripped and then they are encoded into MP3's.

These all seem minor, but it makes me wonder if the court adequately understands the situation.

Re:strange world we live in (1)

Sloppy (14984) | more than 13 years ago | (#437743)

personally i use it to distribute my own music

The court is not aware of your existence. Might wanna do something about that.


---

OT: Pac Man delay? (1)

Cool Hand Luke (16056) | more than 13 years ago | (#437744)

If PacMan had affected us as kids we'd be running around in dark rooms, munching pills and listening to electronic music

Funny, that sort of describes young teeny-bopping ravers nowadays. Does the "Pac-Man effect" have a 15 year delay? :)

George Lee

A matter of metaphors... (1)

sterno (16320) | more than 13 years ago | (#437745)

last i checked, it's not illegal for me to go around telling people where to buy drugs. nor is it illegal to write a book telling people how to make pipe bombs. can anybody tell me why Napster is considered differently?


What napster does isn't quite like you telling people where to buy drugs. With napster it is more like you own a giant flea market where everybody is selling drugs. You know it, the cops know it, and everybody who attends the event knows it (which is why they attend). The important point here is that Napster's network and software facillitate the trading.



To illustrate the difference, let's look at lycos' mp3 search. You can do the same sort of searching that can be done through napster, but lycos doesn't provide any facilities for connecting you with the other people. This may seem like a subtle difference, but it is important.


---

demented (1)

Sekmu (20555) | more than 13 years ago | (#437748)

Hey, hey, RIAA
how many customers did you screw today?

Re:This is not good news for Napster (1)

p0six (23324) | more than 13 years ago | (#437749)

It seems to me that you are incorrect in number 7. That is, in my opinon, the most important part of this decision.

-=snip=-
B. Digital Millennium Copyright Act
Napster also interposes a statutory limitation on liability by asserting the protections of the "safe harbor" from copyright infringement suits for "Internet service providers" contained in the Digital Millennium Copyright Act, 17 U.S.C. ß 512. See Napster, 114 F. Supp. 2d at 919 n.24. The district court did not give this statutory limitation any weight favoring a denial of temporary injunctive relief. The court concluded that Napster "has failed to persuade this court that subsection 512(d) shelters contributory infringers." Id.We need not accept a blanket conclusion that ß 512 of the Digital Millennium Copyright Act will never protect secondary infringers. See S. Rep. 105-190, at 40 (1998) ("The limitations in subsections (a) through (d) protect qualifying service providers from liability for all monetary relief for direct, vicarious, and contributory infringement."), reprinted in Melville B. Nimmer & David Nimmer, Nimmer on Copyright: Congressional Committee Reports on the Digital Millennium Copyright Act and Concurrent Amendments (2000); see also Charles S. Wright, Actual Versus Legal Control: Reading Vicarious Liability for Copyright Infringement Into the Digital Millennium Copyright Act of 1998, 75 Wash. L. Rev. 1005, 1028-31 (July 2000) ("[T]he committee reports leave no doubt that Congress intended to provide some relief from vicarious liability"). We do not agree that Napster's potential liability for contributory and vicarious infringement renders the Digital Millennium Copyright Act inapplicable per se. We instead recognize that this issue will be more fully developed at trial. At this stage of the litigation, plaintiffs raise serious questions regarding Napster's ability to obtain shelter under ß 512, and plaintiffs also demonstrate that the balance of hardships tips in their favor. See Prudential Real Estate, 204 F.3d at 874; see also Micro Star v. Formgen, Inc. 154 F.3d 1107, 1109 (9th Cir. 1998) ("A party seeking a preliminary injunction must show . . . 'that serious questions going to the merits were raised and the balance of hardships tips sharply in its favor.'"). Plaintiffs have raised and continue to raise significant questions under this statute, including: (1) whether Napster is an Internet service provider as defined by 17 U.S.C. ß 512(d); (2) whether copyright owners must give a service provider "official" notice of infringing activity in order for it to have knowledge or awareness of infringing activity on its system; and (3)
whether Napster complies with ß 512(i), which requires a service provider to timely establish a detailed copyright compliance policy. See A&M Records, Inc. v. Napster, Inc., No. 99-05183, 2000 WL 573136 (N.D. Cal. May 12, 2000) (denying summary judgment to Napster under a different subsection of the Digital Millennium Copyright Act, ß 512(a)). The district court considered ample evidence to support its determination that the balance of hardships tips in plaintiffs' favor: Any destruction of Napster, Inc. by a preliminary injunction is speculative compared to the statistical evidence of massive, unauthorized downloading and uploading of plaintiffs'
copyrighted works-as many as 10,000 files per second by defendant's own admission. See Kessler Dec. ? 29. The court has every reason to believe that, without a preliminary injunction, these numbers will mushroom as Napster users, and newcomers attracted by the publicity, scramble to obtain as much free music as possible before trial.

-=/snip=-

What this means (IMO, IANAL, etc) is that what I think is Napster's most important defense (Common Carrier), is really still alive and kicking, according to the Appeals Court. What they conclude is that while they don't think that Napster's contribitory infringement necessarily procludes it from protection under the DCMA. HOWEVER, considering that they left the issue to be resolved at trial (remember this is only a trial on an injunction), NOT granting an injunction would potentiall cause more harm to the plantiffs (the record companies) than to the defendants (Napster).

So, even if Napster gets smacked down with an injunction, it doesn't mean that it's down for the count!

"Napster must stop trading copyrighted material" (1)

bmarklein (24314) | more than 13 years ago | (#437750)

AP report has a different spin ASSOCIATED PRESS SAN FRANCISCO, Feb. 12 -- A federal appeals court ruled Monday that the music-swapping service Napster must stop trading in copyrighted material and may be held liable for "vicarious copyright infringement" when it fails to patrol its system. NAPSTER MUST PREVENT users from gaining access to potentially infringing content on its search index, the 9th U.S. Circuit Court of Appeals said, a ruling that Napster officials have said could force them to shut down the service. In its ruling -- which Napster officials have said could force them to shut down the service -- the appeals court says the company has to keep users from gaining access to content that could potentially infringe on copyrights."

This doesn't really settle it. (1)

John Thacker (34082) | more than 13 years ago | (#437756)

My quick and dirty read, is that that the court, as expected, found that trading copyrighted materials is illegal. They also found that Napster cannot knowingly allow such trade. The judges ordered the lower judge to rewrite the injunction so that Napster does not knowingly allow trade in copyrighted materials. That part was fairly expected.

Now, Napster has claimed that it cannot operate while finding out which items were stolen and which were not. It is relying on various precedents (VCRs, auction sites, ISPs) in the US Code that would protect their liability if they have a legal use other than the illegal one to which they are being put, and they don't know about the illegal ones. A tool with legal uses cannot be banned simply because it has illegal ones. However, it can be forced to try to prevent the illegal uses.

Whether Napster will be able to police its trades so much is questionable. What is clear, is that most of the traffic that goes on is illegal.

Re:Interesting... (1)

MadAhab (40080) | more than 13 years ago | (#437759)

Other than your leading comment ("I don't agree that MP3 piracy is fair use"; who would? Piracy is not fair use by definition, so this is arguing the conclusion), I have to agree with you about this.

The precedents that would be set were Napster to use would be horrible. What is particularly outrageous is that the overreaching DMCA already addresses the proper way to handle this; copyright owners notify, in writing, that an infringement is occurring, and Napster, in an ISP-like role, has 24 hours to stop the infringement, which in this case means cancelling the user account.

Worse, space-shifting will be dead, fair use will be dead, the presumption of innocence will have been dealt a mean blow, and all digital expression will be presumed to be infringing unless backed with a Fortune 500 logo, and this will be backed up with technology as well as laws, thus freezing freedom of expression to the analog universe. Which means that an entire nascent culture, one which frees us from being passive consumers, will be ruthlessly annihilated.

Boss of nothin. Big deal.
Son, go get daddy's hard plastic eyes.

Read the opinion. (1)

Jay Maynard (54798) | more than 13 years ago | (#437765)

Don't take anyone's word for what it says. Read it yourself.


What it said to me was that the appeals court upheld everything the district court did, except that it could only hold Napster responsible for failing to police the system. Judge Patel can craft an injunction that requires Napster to prohibit transmission of any work with a title and/or by an artist which Napster has been notified is copyrighted and may not be sent over the service, and to remove anyone who makes such a work available. Yes, people can rename their MP3s to not be obviously infringing, but then how do others find them? Either way, the injunction is effective the end of the road for Napster.


The appeals court's ruling makes Gnutella or something similar a certainty: without the power to police users of the service, there can be no contributory or vicarious infringement. Anyone providing a centralized indexing service for it, though, is in trouble if they allow copyrighted works to be listed.
--

Re:An example of fair use. (1)

fizban (58094) | more than 13 years ago | (#437767)

Well, depends on how you look at it. If you look at it from the recording industry's viewpoint, you only bought the "packaging of the song" and not the "song" itself. This packaging also includes the analog and digital representations of the song. You would have to go and buy the actual rights to the song itself to do what you're saying. They are two separate things. This is why we can't just go down to the record store and trade in our tapes for CD versions of the same songs. Not gonna happen. We own a tape or we own a CD. We don't own everything.

And so we have our current mess. The recording company owns the actual "idea" of the song and they've been able to package it up in a number of convenient ways for you to buy at your leisure. This is why they're so screwed by Napster and the like. They no longer have a monopoly over the distribution of the packaging.

Now, what the courts are going to do with this mess is anyone's guess. They'll probably continue to reword things again and again over the upcoming years to try and strike an even balance between the rights of the recording companies to distribute their "property" and the rights of the consumers to use this property for their personal enjoyment.

--

Napster is dead (1)

HBergeron (71031) | more than 13 years ago | (#437770)

long live Gnutella

Re:Why no Napster for books? (1)

Stonehand (71085) | more than 13 years ago | (#437771)

Probably because not that many people want to read a decent-sized book off a computer screen, or are willing to print 'em, whereas digital music tends to go to the same place regardless of source or medium: a set of speakers or headphones. No additional inconvenience is added.

Plus, many books are pretty cheap, especially mass-market paperbacks and used books -- at least for those people who don't mind "authors" who crank out basic, self-copying formulaic stories en masse.

Re:Copyrighted material (1)

Stonehand (71085) | more than 13 years ago | (#437772)

They could block, or at least flag, many searches -- it's their engine, after all. It wouldn't surprise me to learn that many searches were either just a complete singer/band name ("Brittney Spears") or a song title ("Eve of Destruction". OK, so more likely something a bit more recent...).

It'd be easy to argue that a search for "N'Sync" very, very likely is, in fact, a search for "N'Sync" MP3s, and therefore should be blocked. If they periodically look at, say, the top 50 most popular searches, they might be able to accumulate a decent blacklist.

Re:Napster Teleporter Feature (1)

technos (73414) | more than 13 years ago | (#437773)

If you were watching Millionaire last night, you'd know that Lars' mental program would fit quite nicely in 640K.

Re:The key paragraph (1)

kootch (81702) | more than 13 years ago | (#437775)

so all they are saying is that Napster is still going to be shut down, it's just that the original decision needs to be a little less broad reaching.

so we've got about a week to get all of our MP3's through Napster.

bottom line is that free Napster is finished, it's now just on life support until they're told to pull the plug.

Re:Replace? (1)

Nutcase (86887) | more than 13 years ago | (#437777)

Clearly, Napster will replace Napster. Or rather, OpenNap. People will just connect to the free servers. Hell.. they could even use napster's software to do it.

Re:You don't know the law! (1)

emmons (94632) | more than 13 years ago | (#437779)

Yes, but NAPSTER is not the one making and distributing millions of copies of music. The service is merely telling others where to access the computers of those who are. Please don't confuse the two.

Let me give an example: I can legally tell you where a drug dealer is, what he's selling and for how much. I can even give you a ride to the street corner he's standing at. I cannot, however, buy or sell the drugs themselves. To relate this to Napster: Napster is telling you where the dealer is, but it's the users who are doing the buying and selling. The users are the ones that should be sued.

The RIAA, however, goes after Napster because that's easiest. It woudn't be very popular- or cost effective- to sue 20 million users.

----

OK, so Napster is all but dead, but... ;-) (1)

CSG_SurferDude (96615) | more than 13 years ago | (#437783)

OK, so what does this do to ALL the other Napster clones out there? OpenNap servers for one, as well as Napster clones operating in other countries?

As has been said before Not only is the Genie out of the bottle, but he's replicated himself a million times over.

"Court Says Napster Must Stop " (1)

XJoshX (103447) | more than 13 years ago | (#437785)

...from washington times [washingtonpost.com]

From the Drudge Report [drudgereport.com] : "THE DAY THE MUSIC DIED: NAPSTER TOLD TO STOP
Court directed NAPSTER to remove links to users trading copyrighted songs stored as MP3 files... "

Washington Times, Not post. (1)

XJoshX (103447) | more than 13 years ago | (#437786)

This is what I get for posting during CS class ;)

Re:How about "modify name"? (1)

bludstone (103539) | more than 13 years ago | (#437787)

actually, thats exactly where he got the name from. His hair was nappy, and people called him "napster" it was a sean's nickname :) (and his irc nick, btw)

%@$@ 'em if they can't take a joke (1)

Cullpepper (106167) | more than 13 years ago | (#437789)

Anyone care to add to the list of *other* ways to share music files?

I can think of:

Gnutella
Freenet
Hotline
Carracho
Geocities

(And the napster-clones that will appear in russia in about 2 days. ;)

Why should I care? (1)

SpanishInquisition (127269) | more than 13 years ago | (#437799)

Like my hard drive is not already full....

Re:Napster ... what baout the rest? (1)

ahknight (128958) | more than 13 years ago | (#437800)

They don't need to, just their lawyers (who, admittedly, can't spell it themselves, but the point remains).

Besides, once they figured out that Slashdot is the pinacle of geekdom (ha ha ha) and everyone who knows anything reads it (ha ha ha) I'm sure they stuck a minimum-wager in a corner with an iMac to read similar web sites looking for people to sue.
--

Summary of Conclusions (1)

miniwookie (131560) | more than 13 years ago | (#437801)

Napsters probably dead. Here is a summary of the court's conclusions:

The court must reissue their injuction with the following restrictions on napster:

1. We nevertheless conclude that sufficient knowledge exists to impose contributory liability when linked to demonstrated infringing use of the Napster system.

2. We affirm the district court's conclusion that plaintiffs have demonstrated a likelihood of success on the merits of the contributory copyright infringement claim

3. We conclude that the district court did not err in determining that Napster financially benefits from the availability of protected works on its system.

4. The court can require a $5 million bond on the part of Napster due to the likelyhood they will lose their case

5. If they loose the court can count each instance of someone shareing a file on Napster as a copyright infringement (Damages could be billions at $200K each)

6.As stated, we place the burden on plaintiffs to provide notice to Napster of copyrighted works and files containing such works available on the Napster system before Napster has the duty to disable access to the offending content. Napster, however, also bears the burden of policing the system within the limits of the system. Here, we recognize that this is not an exact science in that the files are user named. In crafting the injunction on remand, the district court should recognize that Napster's system does not currently appear to allow Napster access to users' MP3 files.

Re:Good and bad (1)

vianetman (138662) | more than 13 years ago | (#437806)

Yeah, maybe I do feel a little bad for taking for free the property of hard working artists. I feel bad when I take 60-90 cents out of their pocket for every ENTIRE album I download, but what I do not feel bad about is the remaining 14-20 bucks that would have gone to a record company that is suckering artists into signing over their work in exchange for pennies because the industry refuses to take adavantage of technological advances in the interest of protecting an antiquated distribution system that they have grown comfortable with.

Do I mind paying for music, no. Do I understand that production, marketing, and distribution of products cost money and the producers of such material are entitiled to a profit, yes. But, I also believe that there is a better way for everyone involved, and that the P2P revolution will tear apart our perception of intellectual property and our methods of distribution and protection of it.

The industry is going to try to throw laws and legal intervention at the problem, but as with any regulation, there is a price to pay for it. There is a competative business model out there that will bring more money and return control back to the artists, as well as provide a healthy profit for the companies that market and distribute the artists' works.

Free market economics are a lot like biological life. When things are left to be, normally the strong will survive and a balance that serves (most of) the interests of the participants will evolve. I believe what we will see is the extinction of the record company as we know it soon.

Awesome!! (1)

Chester K (145560) | more than 13 years ago | (#437808)

I don't know what I'd do without my daily dose of Copyright infringement! I'd hate to have to be resigned to decoding DVDs with DeCSS for cheap thrills.

Viva la Napster!

Good Deal (1)

phallen (145919) | more than 13 years ago | (#437809)

Though I haven't read the 1million word document, hopefully this means that the legle system isn't totally broken.

Maybe the courts will take the time to make a few copywrite/intelectua prop. law suggestions while they're at it. We need some smart people to sit down and figure out some new laws.

When intelectual property can instantly be possessed for free by everyone, is it property?

-- Joe

PS: if you copy this post or email it to someone, I'll sue.

Re:Copyrighted material (1)

pokrefke (146856) | more than 13 years ago | (#437811)

"how do you possibly protect against this?"

Only one way I can think of....shut down the service.

Napster Will Prevail (1)

DrMyke (150908) | more than 13 years ago | (#437813)

Is there anyway to get Lars formatted into a mp3 and just have him bounce on the net forever? Especially after that Napster bit he tried on "Who Wants To Be A Millionare." Wait, was that copyright infringement? Damn, I hate when I do that.





--DrMyke

Re:Napster Teleporter Feature (1)

DrMyke (150908) | more than 13 years ago | (#437814)

And would that be 640k of memory? since that is all anyone would ever need?

--DrMyke

metallica ban all over again... (1)

mark_lybarger (199098) | more than 13 years ago | (#437832)

from what i read, napster will be required to stop allowing copyrighted material to be traded only after it's been made aware of the fact that copyrighted material is being traded via its service. what that sounds like to me, is kinda like the metallica ban all over again. someone has to tell them that a copyright piece is being traded (probably the username sharing the file) and then they will have to take action. i don't see them limiting the song searches or anything like that. regardless, their servers are going to be hit for the next few weeks while people go on a frenzy. gnutella anyone?

partial? (1)

2MuchC0ffeeMan (201987) | more than 13 years ago | (#437834)

i like how they only partially upheld the injunction... which may leave a loophole? IANAL

Yay! (1)

stubob (204064) | more than 13 years ago | (#437836)

Thank God the Appeals court upheld the lower court decision. Now Napster's lawyers can appeal to the Supreme court and we can finally get this crap over with.

In case you don't get where I'm going with this here's the key: lower courts do not have the ability to create or change laws, they can only apply the existing laws. It is up to the Supreme court to decide if a law in unconstitutional and needs to be tossed *cough*DCMA*cough*.

I had a feeling you were going to say that.

The decision's finally in... (1)

abe ferlman (205607) | more than 13 years ago | (#437837)

YES!

(I think...)

Bryguy

Napster is Moot (1)

pezpunk (205653) | more than 13 years ago | (#437838)

it's just another medium for the record industry publishers to ciphon money off of the populace, and rest assured virtually none of it will reach the artists.

napster has always said it was in it for the profit, and now it has lived up to that promise. those interested in busting up current copyright laws or the way they're enforced have nothing to celebrate here. napster is, or very shortly will be, another cog in the industry's machine, polished and working properly. in fact, napster has probably turned the tide irreversibly against the idea that people should get music for free. already, they are convincing the mainstream that it's fair to pay a fee for this content. i'm not saying they're wrong, i'm just saying that is what they are currently doing. the revolution has been defused.

anyway, as a musician in a band that, when not touring, still plays 7 times a month, i must say i am SORRY to see so many other musicians happy that the status quo will be maintained. my bandmates and i are wholeheartedly in it for the music and for the fun. if there was NO money to be made in this business (and trust me it ain't far from the case, for a real live band), it would not affect our schedule in the least.

Another Key paragraph (1)

puck01 (207782) | more than 13 years ago | (#437840)

we place the burden on plaintiffs to provide notice to Napster of copyrighted works and files containing such works available on the Napster system before Napster has the duty to disable access to the offending content. Napster, however, also bears the burden of policing the system within the limits of the system. Here, we recognize that this is not an exact science in that the files are user named. In crafting the injunction on remand, the district court should recognize that Napster's system does not currently appear to allow Napster access to users' MP3 files

Despite all the decisions against Napster, I think this is an important decision in its favor. I interprete this to mean, Napster is not liable to police its users, rather this responsibility is placed on the copyright holders. As such, it sounds, for practical purposes anyway, like the status quo. ie. it is up the the Metallicas and Dr. Dres of this world to moniter their materials on Napster and report the violators.

Please correct me if I'm wrong :) puck

Re:Napster ... what baout the rest? (1)

am 2k (217885) | more than 13 years ago | (#437843)

MPAA and RIAA don't even know how to spell the word C-O-M-P-U-T-E-R and you think they read /.?

Copyrighted material (1)

Clubber Lang (219001) | more than 13 years ago | (#437848)

So, according to the ruling as I understand it, napster must block the trading of copyrighted material. How is this to be determined?? Sure they could have a database of bands and songs, but what about mis-spellings?

Let's say the song Metallica - Lars is a pain.mp3 is in the database... what happens if I were to rename it say:

Metallica - Lars_is_a_pain.mp3 okay, might still be blocked
Metallica - LarsIsAPain.mp3 maybe blocked

how about this: M37a11ica - 1ar$ i5 4 p4in.mp3

how do you possibly protect against this? as longs as the napster servers are running, all it takes is creative spelling. Some thing could be said for length/size... all I have to do is add a couple seconds of silence to the end and the song's length and file size have changed too.

Re:Copyrighted material (1)

Clubber Lang (219001) | more than 13 years ago | (#437849)

Oh, for sure... but so far from what I've read they don't have to shut down, they just have to stop allowing the trading of copyrighted material. I'd think napster's dead no matter what, just pointing out that the legal system right now still doesn't have a handle on what's going on.

Questions (1)

dingo2000 (221196) | more than 13 years ago | (#437853)

I have two questions I would like to ask:

1. Have your CD sales went DOWN? (Not just because of market fluctuation, but a steady decrease that's indicitive of less people buying CDs)

2. How does this effect overseas? (e.g. Not USA. It seems that this sort of thing is a legal grey area, caused by the difficulty of different legal systems)

The first one I would personally like to go to court and ask them. It seems that this is the entire point of the suit, yet not once have I hard of actual facts and *gasp* research that points to that. I, and many people that I know, are more likely to buy CDs if we can hear some stuff from it.

Yay (1)

killalldash9 (233189) | more than 13 years ago | (#437858)

Napster Forever! RIAA Never!

How about "modify name"? (1)

OlympicSponsor (236309) | more than 13 years ago | (#437859)

To me, "napster" sounds like a pseudo-cool nickname for a guy with bad hair. It's the napster! Combin' his hair!
--

Guilty Guilty Guilty! - oops, Innocent ... (1)

WillSeattle (239206) | more than 13 years ago | (#437860)

Boil it all down, strip out the fancy words, and it basically says Napster has a right to exist, the RIAA are nazi goons who overstepped their legal authority, and all they can ask Napster to do is a timely removal of copyrighted material upon request and identification.

The only problem is if Napster fails to remove links to files from users who violated their clearly stated terms. Then an injunction can apply. Otherwise, it basically says you're innocent until proven guilty.

ABC news got it all wrong (1)

philyuen (260955) | more than 13 years ago | (#437871)

I'm not sure if that's because Disney owns them or their reporters are simply incompetent. ABCnews wrote: "Napster's Fate Napster's lost a key court battle and the music industry is celebrating. But is it over? " http://abcnews.go.com/sections/scitech/DailyNews/n apsterruling010212.html (BTW, they also spelled attorneys wrong, 6th paragraph, 1st word)

Do what I did. (1)

EllisDees (268037) | more than 13 years ago | (#437874)

Stop buying cds.

Nothing will send a message better than the loss of your cash.

Re:Napster ... what baout the rest? (1)

dachshund (300733) | more than 13 years ago | (#437878)

Killing Napster could put a surprisingly large dent in this business. For a while. Gnutella's not-quite-there-yet, Scour's gone (for all intents and purposes), and the other incorporated services are going to be rethinking their business model-- it ain't worth being sued when you know you're gonna lose. Will OpenNapster gain wide-scale acceptance seeing how vulnerable it will be? Maybe offshore sites are the solution.

Re:What Napster doesn't know won't hurt it. (1)

dachshund (300733) | more than 13 years ago | (#437879)

Depends how the other music corps feel about that. Napster's going to end up owing them all money even if they do voluntarily shut down. Will the other companies be ok with BMI taking things over? BMI's going to have to do a lot of wheeling and dealing to get them to agree to that.

Why no Napster for books? (1)

dachshund (300733) | more than 13 years ago | (#437880)

It's interesting isn't it, that the net seems to have altogether bypassed massive copy-infringment of the written word (which is much less bulky) in favor of more visceral forms of communication (music/movies)? I suppose it certainly is easier to rip CDs than to transcribe books, but I'm surprised we never saw a major wave of bestsellers appearing for free on the net. Or maybe we did, and I missed it.

Re:Why no Napster for books? (1)

dachshund (300733) | more than 13 years ago | (#437881)

You're right that it's probably cheaper to buy the paperback than to print the book yourself. But I don't mind reading books off the screen-- and certainly, MS and others are banking on a certain number of people being willing to do so, with their Reader software. And of course, there are hundreds of very expensive books (think textbooks, technical books) that would be worth scanning and reproducing. Come to think of it, I'm surprised university students haven't put together a Napster for textbooks-- think how much money I used to spend for books, only to sell them back for a fraction of the price.

Not that any of this falls into the honest category, just suggesting it.

Re: strange world we live in (1)

nomar!_go_sox (301224) | more than 13 years ago | (#437883)

You're 100% correct! Reading a lot of these anti-napster opinions, I see there's vast ignorance concerning the service Napster provides. Napster DOES NOT store any mp3s on THEIR servers! They don't store, sell, swap, distribute, etc... anything. They just allow net users a peer-to-peer file sharing ability. And Napster isn't the only site that does this. People share mp3s with each other. I guess I should get arrested for buying CDs and sharing them with friends!

So many people are so clueless about Napster and the services they provide. Know this though, mp3 sharing will not stop. There are too many Napster-like sites. The record companies would go broke if they tried to sue everyone that allowed net uses to share files.

I like Napster! And hope it stays. But will just use another service if they are forced to close up shop.

--- end soapbox rant ---

Opportunity for alternative SW design (1)

blair1q (305137) | more than 13 years ago | (#437886)

Napster, as it's designed, isn't designed to track which files are licensed from the record company and which aren't.

This is an opportunity for someone to build a new, better tool/protocol that trades peer-peer and validates licensing.

Two things keep me from doing it instead of PDing the idea:

1. I ain't got the time. Which ordinarily wouldn't stop me from doing something that would make me rich and famous, but:

2. Napster already has a license from BMG; likely it's got an exclusivity clause in it. So BMG-owned files may only trade through Napster. So the new tool would be missing a huge subset of the set of all copyrighted music. Which lowers the cieling on the rich and famous I could get out of this.

Napster's got a leg up on its own sellout, the savvy bastards.

--Blair

Opennap? (1)

Joohn (310344) | more than 13 years ago | (#437889)

Could this be the end for the opennap servers as well?

C'mon guys..... (1)

caino59 (313096) | more than 13 years ago | (#437891)

Both those servers aren't slashdotted yet.....

Caino

Don't touch my .sig there!

Napster Radio Show (1)

radioguy1 (315407) | more than 13 years ago | (#437894)

Hey I produce a radio show on the NPR station in Seattle. We are talking about Napster today and would love to get some calls from all of you regarding your feelings on the subject. If you are not in the Seattle area you can listen on the web @ KUOW.org / plus you can call us on our 800 line at 800-289-KUOW. If you are calling from out of state, let us know and we'll try and get you through quicker. The show is on from 1-2pm west coast time today. Thanks, Luke Burbank KUOW 94.9 FM lburbank@u.washington.edu

Re:What Napster doesn't know won't hurt it. (2)

phil reed (626) | more than 13 years ago | (#437899)

what's to stop Napster from becoming the official BMI music trading network, oh, and if some non-BMI music got traded, we didn't know about it?

Nothing, except that once Napster is notified by a non-BMI (say, Sony), Napster can no longer claim they don't know. Napster then has to block access.


...phil

Does this mean it'll be easier to find good stuff? (2)

Sabalon (1684) | more than 13 years ago | (#437900)

I use napster for finding bootleg tracks, live recordings, and stuff like that, that have no real copyright to them.

Does this mean now that every search I type in won't return 50 misplaced files and 20 hits for SAMPLE_ACCURATE?

Interesting... (2)

Millennium (2451) | more than 13 years ago | (#437901)

I don't care much for Napster. Never really used it; I tried it one or two times but I just don't like it. And I don't agree that MP3 piracy is fair use.

But at the same time, I hope Napster wins this. Mainly because its loss would set several extremely dangerous precedents. First, the idea that a service provider is liable for its users. Second, the idea of presumption of guilt (not all Napster users engage in piracy, after all). And third, an erosion if the idea of space-shifting as fair use (even this "modified injunction" defeats this important right).

Honestly, I don't care about Napster itself. It can go down for all I care. But I hope it doesn't drag consumers with it, as losing in a court case like this would cause.
----------

Fair use and the first amendment in decision (2)

Jim McCoy (3961) | more than 13 years ago | (#437902)

Some interesting points here are the last little caveat in the last paragraph of section eight. The first amendment ("fair use") claim made by Napster and used by many here was completely nuked by the court. It found that Napster users were not fair users and therefore the first amendment protections against prior restraint do not apply here.

In operational terms the modifications to the injunction are also interesting. Basically the court found that the original injunction was too vague because it put all of the burden on copyright policing on Napster. The court pushed most of the burden back to the copyright holder, saying that the RIAA, et al. must notify Napster of a violation to start the process in each case of suspected infringement. Napster then has to follow-through and nuke the content and user, but the court did find that peered content on decentralized systems cannot be held to a higher standard than the safe harbor provisions of the DMCA require given the reality of the architectures of such systems.

jim
AZI/Mojo Nation

That is not what the decision says... (2)

Jim McCoy (3961) | more than 13 years ago | (#437903)

The court made several findings related to this point (you can get to the heart of the result in section 8 of the decision) but it basically came down to this -- Napster is not responsible for keeping pirated stuff off of the service, but if a copyright holder comes to them and demands that something must be removed then Napster has to do so, the judge also indicated that Napster needs to stop pretending that it can't do certain things to prevent this from happening again (possibilities here include things like proactive filters on search requests to prevent users from finding copyrighted tracks, stronger user authentication to track "real names", etc.)

jim

Yep, Napster lost. (2)

troyboy (9890) | more than 13 years ago | (#437905)

Napster effectively lost and will be subject to a preliminary injunction while the trial goes on.

The court held that Napster users were infringing the record companies' copyrights and that Napster, if it knew about the specific infringement, could be liable. But, Napster allows for noninfringing uses, so it can't just be shut down completely. Thus, the injunction must be modified so that Napster must be informed about specific acts of infringement. Additionally, Napster must take steps to police the system and look for infringement. These steps make it harder for the record companies to turn off Napster, but the court largely agreed with the District Court below.

Interestingly, the court didn't say whether Napster would be protected under the safe harbor of the DMCA. The District Court has to decide.

Re:strange world we live in (2)

sethg (15187) | more than 13 years ago | (#437907)

it still boggles my mind that anybody could actually argue that Napster should be shut down: they don't even distribute any copyrighted material! all Napster does is to tell people where to get information; information that may be copyrighted.

last i checked, it's not illegal for me to go around telling people where to buy drugs....

If you make an arrangement with people who do something illegal, in a way that their lawbreaking benefits you and you make their lawbreaking easier, then the courts will, at the very least, take a hard look at what you're doing.

On the one hand, if you just write a magazine article that mentions where a lot of drug sales are going on, you could defend that as journalism, and the First Amendment would shield you. On the other hand, if you published a magazine telling people where they could buy drugs, and encouraged dealers to advertise in your magazine, and set up your business office so the dealers could pay for their ads with cash and not leave records of their identities, I don't think the courts would let you off the hook.
--

An example of fair use. (2)

spankenstein (35130) | more than 13 years ago | (#437920)

I own Red Medicine by Fugazi on cassette. I don't even have a cassette player anymore. I downloaded the songs from Napster and burned my new Red Medicine CD.

Was this bad? I payed for the cassette. Fugazi and Dischord got there money and are happy about it, just as I am sure that they are happy that I am still enjoying their music on my CD players now.

Absolutely agreed . . . (2)

werdna (39029) | more than 13 years ago | (#437923)

. . . that the procedural posture of this case is essential to reading the opinion. Napster is appealing the grant of a preliminary injunction based upon a thin evidentiary hearing. Even if 100% affirmed, both sides would then produce their evidence and plaintiff would still bear their burdens of proof at that trial. I disagree that the Circuit court really reversed anything here, except the threshold question whether the DMCA issue should be dismissed without proceeding on trial on the applicability questions.

The Circuit court, unfortunately in my view, suggested that serious issues were raised concerning the availability of the defense to Napster, which supports more than detracts, IMHO, from the defense at trial. I agree that DMCA may be all they have left, but this doesn't leave me feeling particularly happy about their chances under that defense.

I think Napster's best, perhaps only, reasonable chance is to get this opinion reversed on appeal, either directly or after a final judgment following trial. I don't know how much longer they can hold out, however.

Is there any word about timing concerning Judge Patel's scheduling of the remand hearings?

Napster Killed! (2)

wiredog (43288) | more than 13 years ago | (#437926)

According to the Washington Post [washtech.com] .

A federal appeals court ruled Monday that the music-swapping service Napster must stop trading in copyrighted material and may be held liable for "vicarious copyright infringement." Napster must prevent users from gaining access to copyrighted content through its lists of songs archived by the service's users, the 9th U.S. Circuit Court of Appeals said. The panel also directed the Redwood City-based company to remove links to users trading copyrighted songs stored as MP3 files.


Re:Court Says Napster Must Stop? (2)

passion (84900) | more than 13 years ago | (#437937)

A little "Dewey defeats Truman" anyone?

Media Control (2)

RobNich (85522) | more than 13 years ago | (#437938)

A number of people have told me that they thought Napster was shut down months ago. I realized that the media, which is owned/controlled by the same conglomerates as the music industry leaders, is controlling what people find out.

Re:Media bias - You decide. (2)

donutello (88309) | more than 13 years ago | (#437940)

MSNBC seems to spin it differently too, saying No Napster Reprieve [msnbc.com] .

I don't think it's media bias, though. Over the years I have acquired more respect for the professionalism of news agencies such as CNN and MSNBC over agencies such as Fox News to a degree and more so over ZDNet and CNET et al.

RIAA Will Prevail...Unfortunately... (2)

jmorse (90107) | more than 13 years ago | (#437941)

Call it a win for big corporate media, I guess. Notice that the court said that the Metallica-style censoring of files is perfectly legit, and that Napster can be held liable if they don't act upon such requests. This is extremely bad, because it gives the RIAA a way to deplete Napster's funds.

Just imagine: the record companies can afford to hire an army of trained monkeys to scour Napster looking for their copyrighted songs. They can then flood Napster with requests to block those particular users/files. Napster will have to spend obscene amounts of money doing this, and documenting their actions to defend themselves in the inevitable court cases that arise from such "infringements". This will deplete their funds rather quickly, and we can say goodbye to music swapping in any centralized format.

Napster's only recourse is to continue fighting this. We can only hope that they get more reasonable justices as they go up the appeals ladder, instead of the corporatists that sit on the 9th circuit.

I don't know if they can reasonably apply this decision to Gnutella...I sure hope not.

Here is the MSNBC version (2)

JoeShmoe (90109) | more than 13 years ago | (#437946)

For the link-fearing:

http://www.msnbc.com/news/528921.asp

For the cut-and-paste impared:

Click Here [msnbc.com]

- JoeShmoe

The modification (2)

artemis67 (93453) | more than 13 years ago | (#437948)

The district court correctly recognized that a preliminary injunction against Napster's participation in copyright infringement is not only warranted but required. We believe, however, that the scope of the injunction needs modification in light of our opinion. Specifically, we reiterate that contributory liability may potentially be imposed only to the extent that Napster: (1) receives reasonable knowledge of specific infringing files with copyrighted musical compositions and sound recordings; (2) knows or should know that such files are available on the Napster system; and (3) fails to act to prevent viral distribution of the works. See Netcom, 907 F. Supp. at 1374-75. The mere existence of the Napster system, absent actual notice and Napster's demonstrated failure to remove the offending material, is insufficient to impose contributory liability. See Sony, 464 U.S. at 442-43.

Conversely, Napster may be vicariously liable when it fails to affirmatively use its ability to patrol its system and preclude access to potentially infringing files listed in its search index. Napster has both the ability to use its search function to identify infringing musical recordings and the right to bar participation of users who engage in the transmission of infringing files.

It sure sounds to me like Napster is screwed, if they have to monitor their servers for copyrighted material.

The finding seems to be that Napster can stay, but they've got to actively purge copyrighted songs from their servers. Not good.

What Napster doesn't know won't hurt it. (2)

TomSawyer (100674) | more than 13 years ago | (#437952)

So supposedly, according to CNN, the ruling states that if Napster knowingly did not stop pirated material from being traded on its network then it's liable for those instances only. Napster doesn't keep track of its users and when Metallica offered up names and proof on evil copyright enfringers they closed those accounts. Doesn't sound like they knowingly enable pirating to me.

So now that the ruling is in and Napster has a deal with BMI, what's to stop Napster from becoming the official BMI music trading network, oh, and if some non-BMI music got traded, we didn't know about it?

Re:This doesn't really settle it. (2)

burris (122191) | more than 13 years ago | (#437955)

Napster has legal uses, there is tons of music out there that the Copyright holder has granted permission to redistribute (for instance, Grateful Dead, Phish, Dave Matthews, and Metallica concert recordings along with tons of other music). Part of Napster's problem was all the evidence that the executives knew about infringing uses and actually used Napster to infringe on Copyright. There were e-mails where Napster executives were bragging about having gigabytes of infringing material at home that they aquired through Napster. Napster didn't keep their nose clean and now they will pay the piper.

Burris

Re:Does this mean it'll be easier to find good stu (2)

burris (122191) | more than 13 years ago | (#437956)

Sorry, but any work of authorship that is affixed in a tangible medium is automatically Copyrighted. This was one of the changes in the '76 Copyright Act IIRC. You gain extra protections by putting a Copyright notice on the work. The author has to explicitly declare that the work is in the Public Domain for it to not have a Copyright. Practically all 'bootlegs' and other live recordings are Copyrighted but many Copyright holders (Grateful Dead, Phish, Dave Matthews, Metallica, etc...) have granted permission for noncommercial redistribution of their Copyrighted concert recordings.

Burris
(live concert taper)

Legalese is funny. (2)

startled (144833) | more than 13 years ago | (#437962)

Here's a choice quote:
"There are simply no grounds in either the plain language of the definition or in the legislative history for interpreting the term 'digital musical recording' to include songs fixed on computer hard drives."

Wow-- songs fixed on a hard drive are not digital musical recordings. Then what was the whole lawsuit about, anyway? My friend's a capella group recorded their last album to hard drive first-- if he'd known those weren't digital musical recordings, he probably would have paid that recording studio a lot less! Apparently, music is created during the transfer from a hard drive to a CD. Simply fascinating.

Only lawyers could come up with a situation where we're not storing music on our hard drives in the form of mp3's, and that non-music is infringing on the copyright held on musical works.

Translation for the Reality-Impaired (2)

InfinityWpi (175421) | more than 13 years ago | (#437963)

"Napster can be shut down and sued if they don't stop violating copyrights."

Natural response: Napster gets bought up by music company, turns into a subscription service, and only shares music from the parent compeny.

Gee, it's almost like a certain company saw this coming...

Good and bad (2)

Fervent (178271) | more than 13 years ago | (#437965)

I'm pretty happy about this. I mean, I'll be able to continue downloading great songs for no money down, no payments... ever.

However, on some small level, I'm a little disappointed, particularly by some of the artists involved-- those not in the monetary leagues of Metallica, Limp Bizkit and Britney Spears-- that we're stealing out of their pockets. I think MP3's are great, and Napster as a concept is good.

But considering that I'm a writer, I would be pretty peeved if my stuff was being passed around for free. That is, stuff that I don't want passed around.

Does anybody else feel this twinge of guilt?

Napster Teleporter Feature (2)

BigBlockMopar (191202) | more than 13 years ago | (#437970)


Is there anyway to get Lars formatted into a mp3 and just have him bounce on the net forever?

If only! Then, we could e-mail ourselves to work every day.

Course, I think Lars belongs on a heavily fragmented FAT16-formatted 100 megabyte Kalok hard drive with a bad spindle bearing...

Finally!!! (2)

JWhitlock (201845) | more than 13 years ago | (#437972)

Like many, I downloaded Napster for one or two songs. I heard Elvis Costello singing "Radio, Radio" on Saturday Night Live, and wanted to listen to it and see if it was any good on the album. I had fond memories of Faithless's Insomnia from dance clubs in Scotland, but wasn't sure if I had the band's name right, or if I had fallen in love with a remix version.

Months later, I have quite a few singles, tracks that I would have never bought, except perhaps on a compilation. Would I have ever discovered the Gourd's "Gin and Juice" without Napster? Not likely. Despite the record company's protests, if I found enough songs to like, I bought the album. I ripped my CDs, some at home, some at work, and used Napster to transfer the MP3s from home to work, when I wanted a song or two. Life was good.

Now it looks like Napster is going down, at least for a little while, and I say thank you. My hard drive is stuffed with singles, sometimes multiple copies. Only one is a good copy, the rest are bad copies, mixes I don't like, bad live versions. Finally, I will have the time to go through them, weed out the bad ones, and put them onto CDs. I can think about a stereo setup that will allow MP3s to play over the good speakers. I will compile those playlists, for instant parties. I will finish ripping my existing CDs.

In short, I have some breathing room before moving on to Gnutella. Thanks, 9th Circuit Court of Appeals!

Phew (2)

Auckerman (223266) | more than 13 years ago | (#437973)

Gawd, what a terse docuement! Anyone else bother reading the ruling? It reads like well documented code, where the code itself was completly uncipherable [eff.org] .

Replace? (2)

clinko (232501) | more than 13 years ago | (#437977)

My question is what is going to replace napster when it goes to pay only? Gnutella needs work.. mynapster is ok, But cutemx is my favorite so far. The funny thing is that by stopping people using napster, they make them use programs that can share movies... Then we'll a whole new bag... Just my opinion...

Court Says Napster Must Stop? (2)

Mr. Fusion (235351) | more than 13 years ago | (#437978)

From http://dailynews.yahoo.com/h/ap/20010212/tc/napste r_lawsuit_4.html [yahoo.com]

Monday February 12 1:18 PM ET
Court Says Napster Must Stop

SAN FRANCISCO (AP) - A federal appeals court ruled Monday that the music-swapping service Napster must stop trading in copyrighted material and may be held liable for ``vicarious copyright infringement.''

The Facts (2)

melifluous3 (259586) | more than 13 years ago | (#437981)

OK, here are the facts.
  • Napster says their service is OK (not detrimental to the music industry) because users are exposed to music they wouldn't normally be exposed to and then they go out and buy the CD.
  • RIAA is upset because they are afraid that services (and they have targeted Napster) which allow free swapping of high quality recordings will hurt record sales (which has yet to be seen).
  • We all know that if they kill Napster they will be forever hunting down free services like Napster which already exist but are not as popular.

Now for the Epiphany
Some marketing genius is really missing the boat here. RIAA needs to forget about trying to rid the world of Napster and come up with a way to use the Internet to distribute music in a way that people will find beneficial and thus will pay for. Maybe it starts with Internet radio to get you hooked on a song, then make the song available for purchase. There's more to it than this, but when I'm sitting at my (BORING) desk all day long, I am much more likely to buy some downloadable CD than go to the store to get it. While I would much rather get the music for free from Napster - well, that's a problem for the marketing genius I spoke of earlier.

RIAA needs to stop whining and solve the problem on its own. USE the technology for mass distribution. Don't tell us we can order a CD online. Tell us we can download the CD for half the price (b/c there is no media cost, no shipping, no store, no guy at the register) and write the CD ourselves. C'mon guys, be creative...

the scary part of all this... (2)

swschrad (312009) | more than 13 years ago | (#437983)

the scary part of all this is that the case arose because the personal computer does not meet the limited legal definition used in the Sony Betamax case which defined a consumer recording device. so this is all being decided under the laws of two or more generations of equipment ago. and that is the scary part, because in essence we are being told we do not have freedom of press, speech, and association because we are not using a quill, yelling from the top of a hill overlooking the plain, and we are not wearing a common uniform and massed on horses under the same guidon. with little georgie w. bushleague IV and his buds in charge of deciding whether or not to update the laws, turn out the lights, this awful little court case casts a long, dark shadow.

Um, No....Napster will be dead, shortly (3)

Masem (1171) | more than 13 years ago | (#437984)

All this means is that Napster is still dead, as the appeals court agreed with the bulk of the circuit court ideas, but that the injunction was too overbroad. Within a few weeks, the circuit court will have their new injunction, and at that time, free-Napster will be shutdown.

I have a feeling that the brief issues given already are trying to limit the Napster case to strictly Napster, and not trying to extend the result to an overencompassing decision for the Internet, because there's more issues at stake than just what Napster offers. By stating that the circuit court's decision is overbroad, this is a strong sign that the appealate court is avoiding a massive investigation of the copyright system and digital mediums.

Napster ... what baout the rest? (3)

soop (22350) | more than 13 years ago | (#437985)

Ok, so there is all this hullabaloo over Napster shutting down? Why should this even affect anything. I've always been curious over the far reaches of the American judicial system. Like sure they can state what is legal and illegal in the states but what is to stop someone from doing something offshore (ala: the internet gambling casinos etc.) But even aside from that all this focus is on Napster, so Napster dies big deal, they can't stop a movement of this size anymore .. you can equate it with the war on drugs, something that will go nowhere, sure they can bust Noriega or Napster but with that stem the flow? I don't think so. Hell there are still places out there like Audiogalaxy [audiogalaxy.com] which have been around longer than Napster and also search a much broader base of files. If anything all Napster did was bring mass markey appeal of mp3's to the forfront. No one cared until mp3's became a commodity on Nasdaq. Oh well my 2 cents and thats probably over pricing it.

The key paragraph (3)

Stavr0 (35032) | more than 13 years ago | (#437986)

"We direct that the preliminary injunction fashioned by the district court prior to this appeal shall remain stayed until it is modified by the district court to conform to the requirements of this opinion. We order a partial remand of this case on the date of the filing of this opinion for the limited purpose of permitting the district court to proceed with the settlement and entry of the modified preliminary injunction".
---

Re:CNN analysis -- Shawn Fanning invents p2p!!! (3)

yomahz (35486) | more than 13 years ago | (#437987)

From the linked article:


Napster pioneered 'peer-to-peer'

Napster founder Shawn Fanning, a former Northeastern University student, invented so-called peer-to-peer software, which allows users to find and copy MP3 files stored on other users' computer hard drives.



ROFL
--

A mind is a terrible thing to taste.

CNN analysis (3)

wiredog (43288) | more than 13 years ago | (#437988)

At CNN [cnn.com]

Re:17 USC B 1008 (3)

MrBogus (173033) | more than 13 years ago | (#437989)

If a computer were considered a "Digital Audio Recording Device" under the AHRA, that would mean that it would be subject to a RIAA tax on both the player (computer) and the media (hard drives, CD-ROMs). On the other hand, Napster-like activities would probably then be legal.

Since the vast majority of soundcard-equipped computers are beeping away in companies running Excel or whatever, and have nothing to do with MP3s, this would be a huge windfall for the recording industry, paid for largely at the expense of every business that uses a computer. So be careful what you wish for!

17 USC B 1008 (4)

MikeBabcock (65886) | more than 13 years ago | (#437991)

(See quote below)

The only obvious error I found in the appelate court response is contained in this section. The appelate court interprets the home recording act as requiring that the primary or main function of a device be to create digital recordings. Computers, however, become misunderstood because they are, by nature, multifunction devices. A home recording device, such as a VCR, can easily be created out of a PC that only runs one piece of software and can be sold as such. Internet appliance devices are already made out of general purpose components and sold as "Internet only" devices although they can be modified easily to be general purpose computers.

There are many cases of recording studios that use general purpose computers running only recording and audio editing software. These computers must be considered general purpose in nature, although they should not be excluded from consideration as audio recording devices. The inclusion of a sound card capable of both input for recording and output of recorded or generated audio ought to include computers as being as capable of recording digital audio as a primary recording device.

17 U.S.C. ß 1008 (emphases added). Napster contends that MP3 file exchange is the type of "noncommercial use" protected from infringement actions by the statute. Napster asserts it cannot be secondarily liable for users' nonactionable exchange of copyrighted musical recordings. The district court rejected Napster's argument, stating that the Audio Home Recording Act is "irrelevant" to the action because: (1) plaintiffs did not bring claims under the Audio Home Recording Act; and (2) the Audio Home Recording Act does not cover the downloading of MP3 files. Napster, 114 F. Supp. 2d at 916 n.19. We agree with the district court that the Audio Home Recording Act does not cover the downloading of MP3 files to computer hard drives. First, "[u]nder the plain meaning of the Act's definition of digital audio recording devices, computers (and their hard drives) are not digital audio recording devices because their 'primary purpose' is not to make digital audio copied recordings." Recording Indus. Ass'n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072, 1078 (9th Cir. 1999). Second, notwithstanding Napster's claim that computers are "digital audio recording devices," computers do not make "digital music recordings" as defined by the Audio Home Recording Act. Id. at 1077 (citing S. Rep. 102-294) ("There are simply no grounds in either the plain language of the definition or in the legislative history for interpreting the term 'digital musical recording' to include songs fixed on computer hard drives.").

strange world we live in (4)

iso (87585) | more than 13 years ago | (#437992)

it still boggles my mind that anybody could actually argue that Napster should be shut down: they don't even distribute any copyrighted material! all Napster does is to tell people where to get information; information that may be copyrighted.

last i checked, it's not illegal for me to go around telling people where to buy drugs. nor is it illegal to write a book telling people how to make pipe bombs. can anybody tell me why Napster is considered differently? as far as i can tell it's just people failing to see the parallels to existing situations only because they're ingnorant of the technology.

now you and i know that 99% of Napster users use the service to pirate RIAA music. personally i use it to distribute my own music (yes really, there are those of use who do this!), and to obtain obscure/out of print music. but regardless of how it's used, Napster still just provides information, and no actual files. if Napster were distributing MP3s themselves then it would be valid of course, but they're not. telling people how to do illegal things has always been protected under free speech: the Home Audio Recording Act doesn't even enter into it!

of course i'm still bitter about paying the RIAA every time i want to burn a CD of my own music. i guess i'd better get used to being stepped on by the RIAA.

- j

Check out the "fair use" notes in section eight! (5)

Jim McCoy (3961) | more than 13 years ago | (#437994)

Some interesting points here are the last little caveat in the last paragraph of section eight. The first amendment ("fair use") claim made by Napster and used by many here was completely nuked by the court. It found that Napster users were not fair users and therefore the first amendment protections against prior restraint do not apply here.

In operational terms the modifications to the injunction are also interesting. Basically the court found that the original injunction was too vague because it put all of the burden on copyright policing on Napster. The court pushed most of the burden back to the copyright holder, saying that the RIAA, et al. must notify Napster of a violation to start the process in each case of suspected infringement. Napster then has to follow-through and nuke the content and user, but the court did find that peered content on decentralized systems cannot be held to a higher standard than the safe harbor provisions of the DMCA require given the reality of the architectures of such systems.

jim
AZI/Mojo Nation

This is not good news for Napster (5)

werdna (39029) | more than 13 years ago | (#437995)

While the new standard promulgated by the Ninth Circuit, that Napster may be limited, but only when: (1) it receives reasonable knowledge of specific infringing files; (2) knows or should know that such files are available on Napster; ad (3) fails to act to prevent "viral distribution" of the works, may be perceived as something better than simply affirming the District Court, Napster lost big on virtually every key substantive issue:

(1) Affirmed finding of no fair use by users;
(2) Affirmed finding of no substantial noninfringing use;
(3) Affirmed finding that sampling is not fair use or a substantial noninfringing use;
(4) Affirmed finding that Space-shifting in Napster is not fair use or a substantial noninfringing use;
(5) Affirmed finding of material contribution and vicarious liability;
(6) Affirmed finding that AHRA doesn't help Napster;
(7) Affirmed finding that DMCA doesn't help Napster;
(8) Affirmed findings rejecting waiver and copyright misuse defenses;
(9)Affirmed finding that $5M bond for injunction is sufficient;
(10)Rejected Napster's argument that injunction is inappropriate remedy, that a compulsory royalty should instead be imposed.

In short, this sets up a very nice position for the Plaintiffs, and compromises substantially Defendant's main advantages.

I anticipate applying for en banc review and/or Supreme Court review by Napster -- I seriously doubt they can survive going to trial under this new set of legal standards.

In short, while Napster isn't shut down today, unless a change is due, the grim reaper may well come around tomorrow.

Re:The modification (5)

JoeShmoe (90109) | more than 13 years ago | (#437998)

Napster has both the ability to use its search function to identify infringing musical recordings and the right to bar participation of users who engage in the transmission of infringing files.

Huh? How is this even possible? When did Napster get watermarking technology? How can a search function possible identify infringing recordings?

If I search "Britney Spears" am I searching for her music or the audio recording of her swearing on a live mic?

If I search "Metalica" (one L on purpose) aren't I bypassing any search-function ban because last time I checked the real band was "Metallica"?

If I have a song called "Metallica sucks" won't that get caught in the same filter that excludes all infringing Metallica songs?

The ONLY way to tell if a file is infringing is to download and listen to it. There is no technology that can do that except human ears. And even if you identify one particular infringing file and wipe all copies from the service, what about the copies that are missing one or two bytes from the end of the file or other copies of the same song that were made at a completely different bitrate?

The courts are insane. How can they order Napster to do something that isn't technologically possible...even for a well-funded group like SDMI?

- JoeShmoe

Media bias - You decide. (5)

ravi_n (175591) | more than 13 years ago | (#437999)

On news.com (CNET): Breaking News: Appeals court wants Napster injunction modified.

On cnn.com (AOL Time Warner): Appeals court upholds most of Napster injunction, CNN reports.

To be fair, my quick and dirty read of the injunction is that the appeals court agreed with the district court on almost everything and is just asking that the injunction be modified to apply some procedural polish (so CNN's report is more accurate), but I think it is interesting that reporting of the "same" story seems to differ depending on which pies the parent company of the reporting organization has their fingers in.
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