Now Napster has to face written injunction → Re: If Napster was a Brick and Mortar business...

It is not quite so easy as simply saying that copying and sharing music is illegal. It is not! In fact, you have the right, by law, to copy and share music for non-commercial use. If you are so ready to bend to the major labels and forfeit your rights... Hey go for it. I for one am not prepared to have the recording industry dictate how I use the internet.

This case is about control and who gets rich from that control. Don't give up too easily...

From the Wired interview with David Boies
»www.wired.com/wired/arch ··· ies.html

Can you walk us through the case and the arguments you're making?

Sure. There are four basic issues, and the recording industry has to win on each of them in order to prevail. If Napster wins on any one of the four, Napster prevails.

The first issue is: Are Napster's users engaged in copyright infringement? If they are not, that's the end of the matter, because nobody alleges that Napster directly infringes any copyright. Napster's only alleged liability is for contributory or vicarious infringement. You cannot have contributory or vicarious infringement without having some underlying infringement. So when Napster's users engage in noncommercial sharing of music - noncommercial copying of music - is that activity copyright infringement?

We say it is not, for two basic reasons. The first is that this kind of noncommercial consumer copying is recognized as fair use under common-law theories and doctrines, and under the Supreme Court's criteria. And second, with respect to audio recordings - that is, music - the Audio Home Recording Act directly says that noncommercial copying by consumers is lawful. The 9th Circuit, in RIAA v. Diamond Multimedia Systems, in 1999, read that statute as permitting all - and all is the word of the opinion - all noncommercial consumer copying as lawful.

A commercial business making money from offering a broker service to copy non-commercial music, will ultimately be shut down. Even if gmracing is correct, if Napster were to prevail, in theory only one person would have to buy a cd, period, and share it with the world.

If Napster were operating within fair use doctrines as gmracing suggests, there must be more to this than meets the eye, since 1. they are altering their service, and 2) the courts have held that Napster might be responsible for the residuals.

If you don't like what the record companies do, don't listen to their music.

Edit - I meant to add, I understand you can transfer the medium of music from one format to another; e.g. cd to tape, record to tape, etc. I didn't think there was any fair user law allowing the unlimited duplication of music to individuals who didn't own the song. For example if you and I both had Satisfaction - you on tape and me on Cd, I could make a copy of Satisfaction and give it to you. But if you didn't own that song, it a violation of copyright law or theft for me to do so.

I find it amazing that there are still people like you who blindly defend the way copyright laws are currently written. You guys suffer from what I consider to be a case of "blissful ignorance"

Technically Napster does violate copyright, but who cares? Why do I say this? because the question is now moot. The technology is out of the bottle and can not now be controlled by the recording industry. Napster clones will continue to spring up and how much do you want to bet that a new one thats very user friendly is only a few weeks/months away? Ok so then they would be in violation of copyright and the cycle of lawuits begins again. The fact though is that over time people are becoming more and more comfortable with technology and more people are either going online or getting broadband connections. This spells trouble for the people fighting filesharing.

What we really need is to start to re-evaluate how we look at copyright laws because its laughable how they are trying to put this cap on the bottle. Some of those laws were written in the 1920's and have no relevance in the "Internet World". Not because those old laws were bad, they were good for their times. The problem is that they are no longer practical. I read the injuction text and it is laughable because the enemies of Napster have no choice but to operate in a world where the end of Napster is the end of MP3's.....but only untill the next case. They also have to demonize the very people who they want to go and buy the music!

Please! Give me a break. I don't blindly defend anything and I will avoid making sweeping, unsupported statements such as yours in response. The law is the law. If it is changed for the greater good then amen! I place an extremely high premium on common sense and believe, as you do, that the law needs to constantly change and evolve to reflect the times. That does not mean however that it changes essentially to redirect revenue into the pockets of the plaintiff.

You accuse "guys like me of blissful ignorance" when your basic position is to sit back and let someone else ensure the future of file sharing..."do you want to bet that a new one thats very user friendly is only a few weeks/months away?" Not if the laws are written such that it is an enforceable criminal offense to do so. I am not content to sit idly by and hope that my rights will be adequately defended and represented when these laws are eventually rewritten.

I believe it was William Wallace who so eloquently stated:

FREEDOM!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

said by gmracing:

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It is not quite so easy as simply saying that copying and sharing music is illegal. It is not! In fact, you have the right, by law, to copy and share music for non-commercial use.

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Not exactly... If this were true, the you could do the same with software, and any other form of media, right? It's all fair use, right?

This is exactly what the courts are saying is incorrect in the Napster case, that wholesale sharing of music in this manner -is- a copyright violation.

said by gmracing:

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We say it is not, for two basic reasons. The first is that this kind of noncommercial consumer copying is recognized as fair use under common-law theories and doctrines, and under the Supreme Court's criteria. And second, with respect to audio recordings - that is, music - the Audio Home Recording Act directly says that noncommercial copying by consumers is lawful. The 9th Circuit, in RIAA v. Diamond Multimedia Systems, in 1999, read that statute as permitting all - and all is the word of the opinion - all noncommercial consumer copying as lawful.

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Where David Boies is incorrect - The courts ruled that the RIAA would not get an immediate injunction against Diamond Multimedia because the portable MP3 player marketed by them was acceptable use, in that the owner of a music CD could rip it and then load it in the player, which is what Diamond designed it for. This was the personal copying that the courts ruled was acceptable... Similar to backup software and the like. Had nothing to do with DISTRIBUTION. Understand there is a difference between COPYING and DISTRIBUTION.

Want the case documentation? Right here - »www.eff.org/pub/Legal/Ca ··· Diamond/

Very interesting case... But that was just round one, the injunction hearing. It was ultimately settled out of court between the two parties. David Boies is wrong in saying the courts ruled that all copying is permitted. He means it like all noncommercial distribution is permitted, and that's not what the courts said.

[text was edited by author 2001-03-06 20:27:12]

copzilla - you said it more eloquently than me, and that's what I was thinking.

I don't disagree with what you are saying here Copzilla. The basis for my comments was two fold:

1. Napster and the file sharing community has to make a fight- to just dismiss music file sharing as criminal and allow free unchallenged changes by the RIAA to what has some legal precedence is foolish. Boies makes a decent argument even if the court does not agree.
2. I am more concerned about where this type of litigation can lead and how these groups may try to enforce their positions.

quote:

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This is exactly what the courts are saying is incorrect in the Napster case, that wholesale sharing of music in this manner -is- a copyright violation.

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All this means is that the courts are attempting to impose one (narrow) interpretation of copyright law on a new and perhaps misunderstood exchange vehicle...the internet. How many files shared is to many? How many albums and CDs per year are loaned and copied? That was OK but now...??? I simply don't want one group solely responsible for interpreting how the internet can and cannot be used. This quote by the RIAA is a bit troubling... Note: Even the RIAA is not fully in agreement with your interpretation of "free use"...

quote:

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"Whether or not it is lawful for users to share music one-on-one, it is entirely different for a commercial entity to create a business that induces users to do that," Cary Sherman, RIAA executive vice president and general counsel, said in a statement Wednesday. "Napster cannot hide behind what consumers might be able to do, individually and on their own, to build its own commercial business."

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I will leave you with this thought - If it were up to the RIAA and others you would have to buy a CD copy of that new release for the home CD player and a cassette tape of that exact same recording for your office tape deck.

Where are you going to draw the line?

said by gmracing:

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I will leave you with this thought - If it were up to the RIAA and others you would have to buy a CD copy of that new release for the home CD player and a cassette tape of that exact same recording for your office tape deck.

Where are you going to draw the line?

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That hasn't withstood the legal test, and that's where I draw the line. Making a cassette for yourself has been determined acceptable use. You only need to buy one copy of a particular album. But with Napster, where do you buy it in the first place?

I disagree that the courts are imposing a "narrow" opinion on the copyright laws. To me, the chasm is as wide as the Grand Canyon, and the copyright laws are crystal clear. On one hand, the music industry is not forgotten, is represented by each consumer. On the other hand, the industry is completely subverted. How much more could that be evident?