Amicus Brief For Napster -- From AT&T And Friends

HiyaPower writes: "The Standard has an interesting article about the amicus filed today by some fairly heavyweight industry folks (e.g. Yahoo, AT&T, etc.). While they are a bit wishy-washy about Napster itself and the standard of "higher knowledge", they are quite concerned that the ruling in the Napster case could be applied much more broadly against isps in general. The RIAA brief is due Sept. 8, so it will be a bit before they go at this again, but this is getting beyond just the Napster vs RIAA stage of involvement in concern by company lawyers, as well it should." Seems like some appropriate self-interest is involved here -- after all, bad laws may benefit a few folks, but the reality of arbitary shuttings-down is one that large ISPs and most others don't really want in the long term. And if new technology is outlawed on the basis of its possible disreputable use, it's potential good will be blithely overlooked.

There's a difference

The ruling, as I read it, did not ask Napster to shut down. It asked Napster to restrict the distribution of copyrighted material. The rest of this argument assumes that the distribution of copyrighted material is illegal - as the judge did.

While technically impossible to do, it is not difficult for Napster to make a reasonable effort to do so. Napster maintains an index of the music. It would not be impossible to set up filters which would work in most cases. Any judge would be lenient with them as long as they appeared to be making a reasonable effort.

But that's not what Napster's about. While they would like to pretend that they exist to support independent artists, etc. the truth of the matter is that Napsters subscribers are there because they like to distribute copyrighted material for free. Napster would lose its entire user base if it were to restrict copyrighted material. That is the reason why the judgement would mean shutting down Napster.

The argument about the Betamax standard is irrelevant because the judge did not outlaw Napster. The judge asked Napster to make reasonable attempts to prevent (and these are not as hard to do as Napster would pretend they are) the distribution of illegal material. Yes, there are several non-illegal uses of Napster and those are NOT being outlawed.

17 USC 512

This is what the safe harbor provisions of the DMCA were specifically designed for - indemnification of Internet Service Providers from business-destroying injunctions, even when there was the possibility of copyright infringement.

The fact that the judge overlooked that fact is a bit mind boggling.

Unless I missed something and Napster has been actually doing some of the work by means _other_ than automated processes, then they fit 512(a), no? And if so, then the injunctive relief that may be afforded the RIAA can only be under 512(j)(1)(B) which provides:

(B)

If the service provider qualifies for the limitation on remedies described in subsection (a), the court may only grant injunctive relief in one or both of the following forms:

(i) An order restraining the service provider from providing access to a subscriber or account holder of the service provider's system or network who is using the provider's service to engage in infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified inthe order.

(ii) An order restraining the service provider from providing access, by taking reasonable steps specified in the order to block access, to a specific, identified, online location outside the United States.

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This of course begs the question of whether Napster finds itself within a 512(a) framework, which obviously the judge didn't see (I don't know why not, but IANAL _and_ I haven't read the decision) but if they do then the relief afforded the RIAA was wrong. I think. Like I say, IANAL.

And, because IANAL, this isn't legal advice, just MHO, and should be treated as such. In other words: don't rely on this, even for coctail party discussion.

Full text of 17 USC 512 is available online at http://www.bitlaw.com/source/17usc/512.html

Americans Stand Up For Their Right To Sue

First they took away my access to FBI files, but I said nothing, because I don't have an FBI file.

Then they took away my software, because I bought software in Virginia, which passed UCITA, but I didn't care, because I bought an open source replacement package.

Then they remotely disabled my computer, because I said bad things about the software manufacturer, which was against the UCITA provision on the web page they never told me about, so it was legal. But I didn't care, because I backup my system.

Then they disabled Napster - so I sued their ashes off in court. Because, goldarnit, I'm an American, and you'll take away my right to sue over silly things when you pry the DNA chip out of my brain!

Hey, I'm heading for Burning Man [burningman.com], what do you expect ... poetry? I may be a member of the Artists Republic of Fremont [arfarfarf.com] and do the Fremont Colonial Expeditionary Passport Office, but I've got stuff to pack ...

Re:About time...

His position was that if it is mostly used for bad, then it should be outlawed.

He's being more generous than many these days. The current standard seems to be that if any one uses something wrongly, then it should be banned. After all, it's for the children.

IMHO

Napster made RIAA's case for them, simply by behaving badly and stupidly [In your face, RIAA!/1st amendment!/We didn't mean to hurt Lars Ulrich *sniffle*] If they had seized some moral highground (using the Betamax standard) earlier, this should have been over and done with.

The pity is watching all these industry heavyweights weigh in to defend the position which benefits Napster and, should they succeed, Shawn Fanning will profit.

BTW, Doesn't anyone else find it ironic that Sony benefited from Universal v. Sony and is a plaintiff v. Napster? ;-)

Vote [dragonswest.com] Naked 2000

Requirements for contributory/vicarious infringemt

OK, let's play Devil's Advocate here.

Yeah, I think the Betamax standard should apply here too. But let's assume it doesn't - and that the relevant precedent is the "swap meet" (Fonovisa) case cited here:

Of flea markets and file swapping [salon.com]

What would this mean?

Well, it'd suck to be Napster, as Napster's getting a commercial benefit (in terms of banner impressions and a database of requested downloads for marketing resale purposes) in exchange for running a "flea market" at which infringing materials are traded.

But what if the next Napster to be sued wasn't making a red cent off it? What if the "flea market" RIAA's trying to sue is being run by no one, and makes no money? What if there were no central server maintainers to sue?

What if there was no financial benefit to be had by anyone? IANAL, but would this not blow a WW-II-mine-sized hole in the Kursk of RIAA's "Napster Bad 'cuz Napster do contributory and vicarious infringement!" argument?

Wouldn't Patel's decision to apply the Fonivsa standard (as opposed to the Betamax standard), while nuking Napster, be a colossal foot-bullet for RIAA and MPAA, on the grounds that it might legitimize non-commercial file-sharing applications like Gnutella and Freenet?

And dare I say, USENET and FTP?

Re:Sony's in there

Hey, leave Sony alone.

It's not easy being a massive corparation, which wants to control not only the content that people receive, the means of distibution, and also maintain a monopoly over the hardware they recieve it on.

Give 'em a break, eh?

Re:It's About Time . . .

Napster indexes copyrighted works which are illegally shared.

Not according to the appeals court that threw out the Napster injunction. The appeals court found:

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

o it ruled (contrary to the section's express terms) that the immunity from suit provided by 17 USC 1008 only applied to actions under the AHRA.

o it ruled that 17 USC 1008's protections only applied to copying by specifically identified devices rather than, as this Court said in RIAA v. Diamond Multimedia Syst., Inc., 180 F.3d 1072 (9 th Cir. 1999), to all noncommercial copying by consumers (1)
...
(1) The court relied on the fact that this Court in Diamond Multimedia had held (in the context of the AHRA s serial copying and royalty provisions) that digital audio recording device did not include computer hard-drives. The court below ignored, however, that 17 U.S.C. 1008 permits non-commercial copying by consumers using either analog or digital audio recording devices or such a device ; that the legislative history makes clear that Congress intended by that language to immunize all non-commercial copying of music by consumers; that the same Diamond Multimedia Court expressly said that 17 U.S.C. 1008 protects all noncommercial copying by consumers of digital and analog musical recordings (180 F.3d at 1079); and that throughout the Diamond Multimedia opinion the Court discusses copying of music using computer hard-drives as AHRA protected activity.

17 U.S.C. 1008 Prohibition on certain infringement actions.

No action may be brought under this title[Title 17, copyright law] alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

Since Napster's users are not infringing copyright when they share their files, Napster is not contributory infringement. There's no such thing as contributing to a crime when no crime has taken place!

The RIAA may not like it, but file sharing of music is absolutely legal, so long as it is non-commercial. Why? In 1992, in exchange for a royalty on all digital audio media (a surcharge on audio CDRs and digital recorders that has been collected for 8 years now and paid directly to the RIAA), Congress legalized all non-commercial copying of musical works. Bet you didn't know that. Well, the RIAA hasn't exactly been jumping up and down telling you about it.

As I've said before, if you want to know your rights, read the law yourself. Don't take the RIAA's word for it -- they will say anything -- they will tell any lie to suppress the knowledge of your right to share music.

This is an excellent sign . . .

The Ninth Circuit will not soon forget (and Mr. Boies went to great length in his brief to remind them) that the last time they ruled in favor of an IP provider (the Sony Betamax case) using a standard along the lines of a "most frequent present use" test, the Supreme Court spanked them, noting that the standard was that the product "merely be capable of a substantial non-infringing use."

The problem is that the Napster defense is a primarily hypertechnical one, albeit an important one, that does not appeal to the "hearts" of the judiciary. The benefit of having amicus briefs filed on behalf of defendants from enterprises raises more important policy issues -- which will go far to give the three-judge panel a more balanced and critical view of the respective positions of the parties.

Then, hopefully, they will re-read Sony, avoid remaking the mistake they made a dozen or so years ago when they last took on a contributory infringement case of this kind, apply the appropriate rule, and reverse.

freedom

what really matters is freedom of the internet - i don't care so much what happens to napster, but i care alot about laws and regulation of the internet. we need to stand together on this one. we can solve the music issue later. right now we need to keep free speech on the internet. kindof like what this guy [osopinion.com] was saying.

wish
Vote for freedom! [harrybrowne2000.org]
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It's About Time . . .

All through this Napster trial, I have been wondering where all the ISP's were. Whether you like Napster or not, their essential model is dangerously close to the ISP's.

Again, I know there are people who are strong opponents and proponents of Napster(inc) and Napster(idea) and then there are those of us in the middle who have one concern: making sure whatever precedent this case sets is a fair and equitable one. I believed the ISP's should also be very interested in this outcome.

I am glad to see they are breaking their silence.

Sony's in there

What I found interesting was that one of the members of the CEA was Sony Electronics. Can you imagine the civil war that might boil up?

CNET has a good article here [cnet.com].

Re:There's a difference

The argument about the Betamax standard is irrelevant because the judge did not outlaw Napster. The judge asked Napster to make reasonable attempts to prevent (and these are not as hard to do as Napster would pretend they are) the distribution of illegal material. Yes, there are several non-illegal uses of Napster and those are NOT being outlawed.

No. The only legally argued fair use of the Betamax was time-shifting--watching your fav TV shows at a different time because you weren't home when they were aired. In other words, according to the Betamax case, it's only fair use if you watch everything you tape with your VCR exactly once; beyond that, it's "librarying", which is copyright violation. The Supreme Court could have considered forcing Sony to, for example, make the Betamax erase a tape as it played it. That's the equivalent of forcing Napster to put up filters that would somehow filter out RIAA-copyrighted songs.

Indeed, the Betamax technical solution which I just came up with off the top of my head would be considerably easier to implement than any logical filtering system on Napster. Consider, first, that any filtering system on Napster would have to filter out bad stuff, rather than just allowing good stuff. This is because if I want to, say, take advantage of Napster's viral distribution model to distribute my band's songs and get us noticed, I don't have to register with anyone, and shouldn't have to. Also there'd be no way of dealing with live recordings, which are copyright of the band, not the label, and many if not most bands allow their exchange. But suddenly we run into our first problem--how to tell a studio version ("illegal") from a live one (legal)?? Impossible. But let's forget about that for a second. So now we just need a list of all the RIAA-copyrighted songs to filter out of Napster. Fine. One problem--such a list doesn't exist. Napster has repeatedly asked for it in order to comply with a possible injunction, and the RIAA hasn't given them one. Indeed, when one considers that estimates of the size of such a list run to over 1,000,000 recordings, it's no wonder they haven't complied. And it's pretty obvious that filtering out 1,000,000 titles, even if they knew what they were, would indeed be quite an onerous burden on Napster. But that's the real problem--they're just titles. All that's uploaded to Napster is a file name and a file location. When you think about it, there's almost no way to filter out a list of RIAA-copyrighted songs (much less a list 1,000,000 entries long) based only on song titles. Do you only filter out exact matches? A quick search on Napster shows that the same song is probably named with at least 10 different filenames. Do you filter out anything that includes, say, "Metallica" or "Enter Sandman"? What about "my band covers Metallica-Enter Sandman.mp3"? Or just "Ode to Metallica.mp3"? With up to 1,000,000 names to filter out, it's pretty clear that the names of many authorized songs would conflict with RIAA-copyrighted names. What do you do then??

So, you see, it would have been considerably easier to modify the VCR to be fair use-only than it would Napster. Indeed, all the foregoing examples miss one crucial point: the download of an RIAA-copyrighted song can be fair use, if it is for space-shifting or sampling purposes. Indeed, research shows that a significant portion of Napster traffic falls into these categories. This is the analogous activity to the time-shifting which the Supreme Court found was significant enough to allow the Betamax to continue. Thus, to follow your suggestion, Napster would need to create a filter which not only searched to filter out those 1,000,000 "unauthorized" songs (based on a list they never recieved and which may not exist), but further attempted to determine whether the downloading person owned some copy of the song already (this is possible, ala my.mp3.com, if it's on CD, though extremely onerous--Napster needs a copy of every CD in the world plus must run a challenge-and-response test for each download; what if they own it on tape, vinyl, etc.?), or attempt to ensure that they only listen to it for "sampling" purposes. Maybe they could just insert brain probes which would periodically administer electric shocks if someone enjoyed a song they downloaded but didn't buy it.

Oh yeah--and you have to develop it all and put it in place by Friday night (the judges ruling came down on Tuesday afternoon).

So there's your filter. And there's your proof that what the judge's original injuction was indeed designed to shut down Napster, not to just rid it of RIAA-copyrighted songs. The judge's own statements in handing down the injunction make it painfully clear that she didn't give a shit whether it was possible to fulfill it short of shutting down Napster completely. But that's all besides the point, which is that the Supreme Court rejected such a ruling against the Betamax, even though it would have been considerably easier to implement. Instead, they put in place a legal doctrine, stating that a service is not guilty of contributory copyright infringement as long as it is "capable of significant noninfringing use". Napster is, as you admit, very capable of such use, and is indeed used that way every day. Thus, by the Betamax standard, it ought to win the case.

hehe, that's funny

The copyright coalition was formed during the drafting of the Digital Millennium Copyright Act of 1998, in which Congress updated copyright laws to make them more relevant to digital media.

shouldn't that read...

...in which Congress updated copyright laws to make them totally irrelevant to digital media. (i.e. treating digital recordings like physical recordings)
--

About time...

Ahhhh, a clueful response to this. Seems that it isn't cut and dried at all. I had a argument about this at work with a guy who couldn't get the betamax standard through his head. His position was that if it is mostly used for bad, then it should be outlawed. I tried in vain to convince him that that wasn't how this country works. There's even an ammendment to that affect, "If it isn't specifically outlawed, then it is legal by default". Don't kill the medium, prosecute the perpetrators.

Unfortunately, for us, it's easier to kill the medium than it is to go after the law breakers.
--
*Condense fact from the vapor of nuance*
25: ten.knilrevlis@wkcuhc

They Aren't Fighting the DMCA, they are pro-DMCA

Napster's primary defence in this case has always been the service provider provision of the DMCA as has been reported on slashdot earlier [slashdot.org]. This provision exclusively limits the liability of service providers if illegal activities are carried out on their network.

If this case eventually causes that provision of the DMCA to be revoked or weakened via judicial review this will spell dire consequences for ISPs and other service providers, even messageboards (e.g. Slashdot) and USENET may not be safe.


Hanlon's Razor

Human Nature

Whether for better or for worse(and IMHO it's worse), people often see taking responsibility for their actions as some form of admitting defeat. Think about it: how many flame wars do you see that go something like this:

Flamer1: Product X has foo. Therefore it rules!
Flamer2: But foo has problems with bar!
Flamer1: You suck!

The key is that the flamer cannot handle being *wrong*. If we look back at the hunter-gatherer tribes of ten thousand years ago[1], such an admission of wrongness could quite possibly result in an alpha male being pulled down by some ambitious member of the pack(the same holds for animals--make a mistake and you pay). Of course, more intelligent people will realize that you can only truly correct a mistake when you admit a mistake has been made. Then again, human nature usually doesn't go down without a fight.

Unfortunately, there has been little effort in our culture as of late to really embed personal responsibility into society. I hope this changes soon; we'll all be better off for it.

[1]: You can understand a great deal about human nature by looking at how various characteristics fits into the lifestyle of a hunter-gatherer tribesman of ten thousand years ago. Humans haven't evolved that much :)

Napster IS TOO a 'service'

Napster is a file transfer service. It is the functional equivalent to portal websites that allow visitors to search their indexes of html docs stored on computers scattered around the world. As a service provider, the portal website search engines bear no responsibility to police these third-party servers to ensure that copyright laws aren't being violated. There have been precedents set that absolve the service providers from responsibility of the content sent through their pipes. To police this content would make it impossible to provide the service in the first place.

The responsible parties are the people running the servers where the illicit material is stored. If this is on a home computer running a server app (webstar, netprezens, napster, etc.), then that person can be prosecuted for piracy. The ISP providing service to that individual may be notified and their account may be terminated according to the DMCA, but the ISP is not held accountable. The reason AT&T et. al are involved is that they don't want to see this case undermine the current precedents that govern their operations.

Seth