There is absolutely no question that distributing copyrighted materials without the authorization of the owner is illegal. The law is VERY clear on this point and anyone doing it is in violation. But regarding Napster, Perfectimage is right.
The question outstanding is whether Napster playing "middleman" is a violation of existing statute. One side says they facilitate the exchange of illegal goods, so are the same as a "fence." The other says their service doesn't cross that line, so is legal.
The courts haven't said what they think, though the only reason Napster is still active while the case is being decided is they plead hardship in response to the RIAA's motion for a cease and desist order. Very common legal practices, BTW, which in and of themselves prove nothing.
All in all this is a very emotionally charged subject. Sadly, that elicits arguments that have no legal basis. It matters not what terrible people the RIAA members have been in the past nor how much much they've ripped us all off. Look at the oil companies history. It matters not whether they've stifled artistic growth or alternative music. Any number of groups could be acussed of that. It doesn't matter how many people are doing it. Need I mention marijuana or speeding on the highways? No, none of that has any bearing on the subject except from an emotional perspective. They carry zero legal weight.
This is a politically charged issue as well. The RIAA wants the practice to stop. Ultimately it is about money. The RIAA wants to retain control of their property (it *is* theirs, btw) and the associated wealth and power it brings. There's an issue with the sheer numbers involved, literally millions of people. RIAA could start by making a few abusers acapegoats, but they know where that could lead. Forcing the closure of little Billy's MP3 site would create a horrific public relations problem. They'd be construed as bullies. Napster, OTOH, is a company, so it's OK to take them to court.
So, the issue at hand isn't whether violating copyright law is illegal; it is without question. Read the cover of any CD and then look up the laws they reference. There's no question about it. The issue being decided in court is whether Napster has done anything illegal. My guess is they will be found guilty on some level which is why they've already decided to crawl into bed with the devil by signing an agreement with BMG.
Ultimately the RIAA will win. They'll control all the Napsters one way or the other. They'll watermark everything is sight. They'll do whatever is necessary to ensure their survival by controlling their property. There's simply too much money and power at risk for them to not do anything and everything within their power to maintain control. Sadly, as is too often the case, the losers in the end will be the honest users. They'll get to pay for everyone elses' sins. Same as it ever was, same as it ever was... |
Like the "preview" systems in some record shops Napster and similar services provide a welcome opportunity to try new music and, in turn, they might even drive sales of some works. That's a good thing, especially for new artists and those in non-mainstream categories. The problem is that the online services encourage people to violate various laws which, in my book, at very least makes them an accessory to the crimes. Don't misunderstand. I don't take a position for or against Napster. If an artist and company is open to distribution of their property they provide clearinghouse that makes it possible. But as someone in the software business, an industry that has fought against the pirating of our products for years, I completely empathize with the musicians and record companies' positions. In fact, armed with that history, it may be that what the opponents fear is not just what is occuring today, but what is inevitable if it isn't brought under control: a complete abandonment of respect for copyright laws and the legal and moral right to be paid for one's artistic work in music. |
I only have one thing to say to Mr_Gridlock: Well stated. You can ghost write for me anytime. To everyone else: Yeah, what he said! |
This is in response to Issabre's comment "Thus, with the demise of Napster, it's not the loss of free music that I lament so much as the further empowering of corporate domination of music, art, films..etc." It is not a matter of "empowerment." IMO, this is not about corporations and domination. This is a property rights issue. Either you own something or you don't. The owner of something has specific rights and it is improper to assume that because there is a new medium that those rights are somehow diminished. If someone moves to a new house does that mean they have fewer rights to privacy and protection of their property? No, their rights are generally sustained and remain essentially the same. A good excercise is to put yourself in the other fellow's shoes. What if it were your property being given away without your permission? What if it were your livelihood being jeapordized? Don't just think of it in terms of big dollar players. That's just who is getting the press right now. This ultimately effects all of us in many ways and with respect to a wide variety of media. In some ways the corporate types are doing us a favor (no, not in all ways) and it's about time. |
We don't "buy" properties like recordings or software unless our name is Gates, Verve, etc. In most cases a record company, software developer or individual retains the actual rights of ownership. What we pay for is the right to use a property within certain boundaries. Commercial use of these properties without paying an additional royalty, as well as unlicensed distribution to other users, even at no gain to ourselves, is generally disallowed by Federal statute. So, while they may not be breaking the law directly (and the courts will rule on this point soon), Napster and others like them, such as warez sites, do encourage their users to steal by facilitating their actions (the appropriate slang is "fence"). That makes them suspect of being an accessory to the crime. And it is a crime. My wish is that somehow an arrangement will be worked out so that samples of music can be legally distributed using a vehicle like Napster. Properly implemented it wouldn't cut into sales and could be a boon to the industry. But until some agreement is reached and the owners of the materials in question agree to the open distribution of their property I have to take the position that Napster is engaged in illegal activity or at very least encouraging it. With twenty years in the software business I've developed quite a negative attitude toward those that willingly steal others' work. If it's too expensive, don't buy it. But don't make up excuses about being wronged in the past and present to rationalize why it's OK. It's still theft and it's still wrong. |
To answer Robba's questions: These things happen and continue to occur because consumers do not have as much political clout as the special interests (I know; campaign finance reform is a different discussion group). I don't like it, but do recognize how the system works. One can rage against the machine, something I've always been prone to, but with age has come the understanding of how to do it more successfully and at less of a personal cost (i.e., anxiety, frustration, etc.). Civil disobedience has its costs. Is getting free music worth the price being paid, especially considering the alternatives and consequences? For now I consider the music companies a necessary evil. Without them the quality and variety of products would be diminished. Online distribution does have potential to increase variety, but unless there is a way to generate sufficient revenues it will be damaging to the overall quality of what is available. It's simply not a cheap endeavor to produce an excellent recording. |
Me: I'm greedy and want great recorded music. Poor recordings hurt my ears and if the music isn't any good it won't get played. No, I want it all. We agree about "the machine raging against us" and that how all this shakes out will be interesting. The industry did recently get its collective hand slapped for price fixing, but it appears that's all it was. Now the table is turned and let's see if that works the other way or not. Thanks for the exchange. |
The latest news on this front claims Napster is negotiating with one of the Big Five record companies about becoming an online subscription service. Given their previous arrogance and disregard for generally accepted ethics, is it safe to call this move "selling out"? Not to fear, though, as they still get their day (week, month, etc.) in court. The same story says the RIAA was very reassuring on that point. After all the fuss this latest maneuver does leave me wondering whether Napster actually thought to get away with it all or were they just using their users for leverage and exposure to further a different agenda? |
There is a disturbingly growing proportion of society willing to openly disregard the boundaries that define what is "yours" and what is "mine". Claims such as "Electronically pirated music is here to stay..." are unfortunately indicative of that attitude. This trend is driving the music industry, and others, to actions that will be inflicted upon us all. Don't be deluded into believing the music industry is making hollow threats. All we've heard so far is the rattling of swords. Wait until they really get moving. They will wield all their considerable clout if that's what it takes to protect their best interests. The suit against Napster is just the first volley; look forward to additional filings regardless of the outcome of this case. Prepare for widespread watermarking and who knows what else because it's only a matter of time. Their lip service aside, the music industry won't care if copy protection is audible on higher-end systems. If watermarking has a negative effect on what they consider to be a small audience, so be it. Better to lose a little than risk it all, right? They're already using their lobbying power to push for statutes that further restrict users' rights while bolstering their own. Care to guess who will ultimately pay for these laws, lawsuits and "advancements" in the end? Kind of ironic, isn't it? Don't despair, though. With any luck someone will introduce a special box to filter the watermark from the sound signal. The appropriate technology will, of course, have to be licensed from the music industry, so it won't come cheap. Just think. With higher resolution systems we will get to pay for it twice. Once with the music and again with the hardware. Oh, joy to us all! But enough ranting for now. Here's a hearty salute to all the innocent little pirates making this wonderful step forward in technology possible. Oh, sorry. Meant to wave with all five fingers, not just the one... |
To understand where the lines are drawn one has to, first, want to know and, second, take time to become aware of what the law says. Mostly its common sense, but not always. Do understand my belief is this country is so mired in legalities that the average person is doomed to eventually violate them. Sometimes knowingly, sometimes not. That's not an absolution for intentional theft, just a recognition of how ignorance and circumstance can manifest itself. But enough of my disgust with the legal climate in the USA. We don't buy music, we pay a royalty for restricted use. It's all right there on the package. When a radio station broadcasts copyrighted materials they pay a royalty, too. The restricted use granted generally does not include right of duplication for distribution. Stated simply, if it seems you're getting something for nothing you are probably breaking the law. Further, no judge has agreed that Napster is without wrong doing. Instead, they were granted a stay of any "cease and desist" order until an actual ruling is handed down. This is a very common occurance in cases of this nature and has nothing to do with guilt or innocence. Such stays are allowed to specifically avoid undue damage to a company. It is understandably a harder concept to grasp. As for what the music industry charges, I have serious doubts it has anything to do with "foresight" on the music industry's behalf. Instead, since prices have risen gradually over the years, it's simply a matter of them charging what the market will bear. In conjunction with a measure of greed, of course. Capitalism at it's finest. (I am not a lawyer, but certainly played one above. My knowledge of the subject is derived from first hand experience in legal proceedings over copyright issues in the software industry. There is no intent to imply this knowledge is necessarily accurate or applicable. It is essentially my opinion, so use it at your own risk.) |
As other's have noted "lawful" and "legal" are not necessarily related to "ethical." That this is so true really bites, doesn't it? I once commented to a trial judge that what was transpiring in his court room wasn't justice. Not the expected rebuff, his response left a strong impression of coming from someone who had just been reminded of a lesson learned long ago, but one they still found disgusting. "Don't confuse the law and justice. They are not always the same." I still vividly remember suddenly seeing him as a new, still wet behind the ears, going to change the world attorney who had suddenly learned one of the sad realities of the world. Years later it obviously saddened him to inform me of this fact. But it is a fact, so let's not confuse what our ethics say is right and on which side the law falls.
To me the proper use of Napster-like services is allowing access to music not otherwise readily available for which the use of has been *authorized by the owner* for download. Used in that vein it would be a boon to the market and struggling artists alike. Sadly, that is not how it is normally used. The founders of Napster even offered that perspective in their initial defense. To their chagrin, log files from their company showed that even they were guilty of downloading music primarily from artists like Madonna and the Rolling Stones, not niche titles or arcane artists.
In specific response to Cornfedboy, I am *not* clear about Napster's position relative to the law except from an ethical perspective and know that doesn't mean squat when sorting out the legalities. The answers to that laundry list of issues will come from the courts. Current law is apparently equally unclear on the issue and will be until precedence is established or new statutes are passed and tested.
My belief is the courts will find primarily with RIAA because a) doing otherwise will create a terrific mess with respect to existing copyright law and b) no judge wants to have a decision overturned by a higher court. It is a given that the RIAA will persist until they win, be it with this case or another or by pressuring Congress to pass statutes protecting their property. The Napster case could indeed be just the tip of the iceberg.
Regarding the reference to David Byrne, that's a case of mistaken identity. Any sembalance my words might have had to a pre-existing work was purely coincidental...
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