The Daily Ping

FROM: Ryan
DATE: Wednesday September 6, 2000 -- 9:09:58AM

Just disgusting... the RIAA and MPAA are two organizations claiming to be out for "artist's rights," but are really more concerned with lining their own pockets. Artists and directors are never going to get the representation they want or need from these two groups.

FROM: Terry Murphy
DATE: Wednesday September 6, 2000 -- 11:17:23AM

This is all, of course, excellent news. Copyright was originally implemented because books were easy to copy with the advent of mass printing technology, where before they had to be handcopied. Now that digital media is even easier to copy it makes sense that copyright laws should be considerably more aggressive in order to protect intellectual property. You shouldn't be able to copy a digitial copy of the media if the creator doesn't want you to. Otherwise nobody would pay for the media, and there would be no money for the production (let alone profit for the creators). Remember, the supreme court case which legalized the VCR was only won 5-4.

The only other alternative is massive commercialization. Would you rather have Luke and Darth have laser swords with Pepsi logos on them, duelling while the AT&T jingle is playing in the background, and take a nice drive in a Nissan afterwards, or would you rather fully support the creators to make money on their own terms, indepedently?

FROM: Paul
DATE: Wednesday September 6, 2000 -- 12:02:30AM

I think there's a dilution of issues at stake here. There is the question of profit, and the question of copyright.

I believe that most people would like to see copyright holders retain their copyrights for as long as is possible. If I make a movie, I want to be able to tell people, "This is mine. Don't copy it unless I want you to." But, should I agree to let TNT broadcast my movie, I have to understand that millions of people will be able to tape my film for "free". (They do have to own a VCR and videotape, or a digital recorder.) In reality, I should get a nice fee for this from TNT, and I'm sure I do (in reality.)

That, in my mind, is what the MPAA should be doing: leveraging movie rights for TV networks. Getting artists the money they deserve, so that artists don't have to drop commercials into their works. This model has seemed to work just fine since the VCR was invented.

The problem is, of course, the digital question and its ability to make "perfect" copies of everything. To that I say, honestly, that's how it is. Once we have digital TV, I'm sure cable will cost more, the network packages will cost more, and we'll have to pay for more features we don't need. The PPV cost that the MPAA probably wants should be included in my monthly fee - an unlimited license, if you will, to the movies broadcast. I know that every license includes the usual "don't copy this, don't broadcast this" legalese - so why not carry that over, too?

If I purchase a recording device, I want to record things off of TV. Digital or analog, period. That's the whole point of the unit, after all. Will I really be robbing the artists of their money by getting a TiVo copy of a movie? No, because their contract with the network should take care of that. If the artist doesn't get money from the deal, that is the fault of the MPAA for not negotiating a fair deal. For the consumer, though, we'll hear the artist complain (rightfully so), and start wondering where most of the money goes. It's Napster all over again.

The consumer shouldn't have to deal with the business end of this, at all. Yet the MPAA wants the consumer to act as the business conduit and, basically, bypass what the networks do. That's sickening.

And Terry, we already have that commercialization in place both in TV and in film. The latest TV technology allows networks to insert "virtual" ads into sports events - this is already happening. In the movies, you get product placement to the nth degree. It's here, it's been here, it's not going anywhere. There are commercials in the theaters, there are commercials on TV, during shows and movies.

The MPAA is turning movies into commodity. Although, considering the incredible amount of crappy films that have been out there in recent memory, maybe this is deserved.

The bottom line is that the MPAA and RIAA are dinosaurs that have grown out of necessity, but are now very much hurting the artists, themselves, and the entertainment industry.

FROM: Ryan
DATE: Wednesday September 6, 2000 -- 2:57:32PM

Pinger Aaron over at Random Shiznat pointed out this funny comic at Salon that seems appropriate...

FROM: Paul
DATE: Wednesday September 6, 2000 -- 3:31:24PM

That's excellent. :)

FROM: Tony
DATE: Wednesday September 6, 2000 -- 4:44:21PM

These organizations cannot understand change, they cannot understand that in the future it will get easier and easier for people to pay less for things, therefore reducing profit margins, fearing this, they attack what they barely understand themselves . Through this they stunt the growth of this kind of technology. These organizations might be afraid of exposing those artists who are only in it for the money , when they decided to give up, when it gets cheaper to get a hold of there music or movies. What you will be left with is those people who have a "true" passion and calling for the arts. The ideals of these organizations stops some music and movies today, where in the future either we will pay out the nose for 1 song. Also people will get into heavy pirating, and then those caught will be hanged (not literaly). -OR- These petty money grabbing bank-accounts in suits will fade into the wind, a lot of "fake" artists will flounder and these forms of expression will travel back to there roots of total self-expression.

FROM: Ryan
DATE: Wednesday September 6, 2000 -- 4:51:45PM

Tony brings up an interesting point -- will the imminent changes actually help us get rid of the pop crap that exists only to make money?

FROM: Tony
DATE: Wednesday September 6, 2000 -- 5:03:50PM

This is a tad off , but I wrote an article concerning Napster on my site and I figured It could apply here , so I'll post it.First off, I think napster is not to blame for all music piracy
The service simply "hooks up" someone who has something
someone else wants. Really napster has very little control
over whats shared through its the napster servers

People assume that all this music is stored in some "huge"
hard drive somewhere. When in reality napster does not
store the music, it just provides a pipe for users to share
data. Its a "service" not a provider. The only way to cont
rol napster is to shut it down. Un-fortunatley that cancels
the oppurtunity for up-and comers to get there voice heard

On the Metallica vs. Napster subject, well Metallica, is trying
to silence small bands, so well, becuse they are angry. Because
small bands now can use napster to distribute music,
whereas Metallica didnt have that advantage. So its a more
of "mad little Metallica, getting back at the music community,
for not becoming popular through mp3, or having the
oppurtunity to use mp3, and capitize on it."


For example I recently saw a music video called
"Sucks To Be You" by Prozzak. I liked the song
so I went to my PC, fired up napster, and down-
loaded the song. Later I decided to D/L the
whole album. Even though I have a CD-R , Im
going to buy the album , "hot show" by Prozzak.
Why? because I support the band through my
entertainment dollar.

"becuase of napster, I have explored a new aritst,
bought I record I will like, and I am a fan of a band
I never knew existed."

In my opnion the bottom line here is that napster helps
people make more informed cd purchases. Who do that?
Becuase CD's are nortoriously expensive. Why? I have no clue,
but I bet the R.I.A.A. has some say into it.


- * -

FROM: Terry Murphy
DATE: Wednesday September 6, 2000 -- 7:42:09PM

These organizations cannot understand change, they cannot understand that in the future it will get easier and easier for people to pay less for things, therefore reducing profit margins

Um, if you think that the businesses in question do not think their profit margins are going to be erroded, then why do they care about this issue? One of the RIAA's main arguments in the preliminary injunction against Napster was that they are losing millions of dollars per day because Napster contributes to facilitating illegal copyright infringement. Of course they care about profit margins. This is not a case of them irrationally unwielding their power, it is a case of them protecting their property rights, which, because people are illegally violating them, their business model is under threat. What should they do? Happily smile at the thieves, while their perfectly legitimate business plan goes down the drain? Defending their intellectual property rights, which are guaranteed by the US Constitution is not done out of ignorance or desperation. To not do it would be commercial suicide.

they attack what they barely understand themselves

The average age of the average online thief is something like 12 or 13. It takes no specialized knowledge to understand how to illegally transfer a file across the internet. If anybody is ignorant, its the thieves who don't understand law (how many times a day do I have to hear that making a digital copy on a PC of a song is fair use? It's not!)

FROM: Tony
DATE: Wednesday September 6, 2000 -- 8:15:35PM

Your proably right about the losing of millions , but still I havent seen any RIAA or MPAA execs working a Burger King latley. The problem is the RIAA and MPAA are trying to use an antequated system of laws and infringment protection in a new world. It may work , but It will run into snags, like Napster, and Scour. The only way for the RIAA and MPAA to make it fair of everyone is to re-strucre the way that media distrobution is governed. Which may mean som profit cutbacks to ease swelling on piracy. When I said what they barley understand , I meant they bearly understood how this kind of technology was going to explode, facilitating things like napster, and wide-spread .mp3 use.

FROM: Terry Murphy
DATE: Wednesday September 6, 2000 -- 8:28:47PM

Tony brings up an interesting point -- will the imminent changes actually help us get rid of the pop crap that exists only to make money?

12 million Britney Spears fans wallets, and the $500 million (or whatever) grossed by Star Wars speaks a heck of a lot louder than the 5 fans of [trendy underground artist of the week] or [trendy independent film maker of the week]. The industry will follow wherever those fans lead, and as I've said in the past, the online media is much more conducive to pre-packaged, hook-laden, short pop songs and short pop anti-thinking movies (Spirit of Christmas, anyone?) than the traditional media is.

FROM: Terry Murphy
DATE: Wednesday September 6, 2000 -- 8:53:02PM

Paul -

I make a movie, I want to be able to tell people, "This is mine. Don't copy it unless I want you to."

Agreed.

But should I agree to let TNT broadcast my movie, I have to understand that millions of people will be able to tape my film for "free". (They do have to own a VCR and videotape, or a digital recorder.)

Yes, but with the clause that if somebody can make a perfect digital and commercial-free the chance that broadcasters will put up there stuff will be greatly diminished. Currently broadcasters put their property up on the condition that the only way to copy it is to make an inferior copy with commercials, which cannot be practically distributed in mass.


The problem is, of course, the digital question and its ability to make "perfect" copies of everything. To that I say, honestly, that's how it is.

For the broadcasters, "that's how it is" is not good enough. Up until now, content creators have had the upper hand because they own the masters to the works. From now on (if you take the Slashdot-style of online content delivery advocacy) consumers will have the upperhand because they have the masters (at least, perfect copies of them). This is not, IMHO, the VCR debate repeated: it's the shift of ownership from content creator to consumers. At that point, the incentive to create content is greatly dminished. What's needed is a middle ground: Slashdot-style consumers can not have ALL the rights (as in a copy of the master which they can use however they want), but neither can the content creators. Both sides need to realize that they cannot have both. DVD is probably the best compromise so far, but of course has holes (DeCSS). DIVX gave the producers too much control (a cpay-per-use system), but the CD gives the consumer too much control (complete, unecrypted, raw access to the content).

Will I really be robbing the artists of their money by getting a TiVo copy of a movie? No, because their contract with the network should take care of that. If the artist doesn't get money from the deal, that is the fault of the MPAA for not negotiating a fair deal.

You could certainly potentially harm content creators by recording stuff from TV, especially in digital format. Scenario: some popular TV show is broadcast in the east coast first. Some guy makes a perfect digital copy of it, puts it on the internet, and nobody ever watches it again with the commercials, because they can download a better version from the net. The ONLY way to combat this is advertising which is PART of the content, which is really degrading.

And Terry, we already have that commercialization in place both in TV and in film. The latest TV technology allows networks to insert "virtual" ads into sports events - this is already happening.

It may be happening on a small and subtle scale but in the future it has the potential to overtake the regular content to the point where you no longer produce a movie, but just a big long ad for a product. Certainly this is inevitable if content is free (of cost, and of overt commercials)

The MPAA is turning movies into commodity. Although, considering the incredible amount of crappy films that have been out there in recent memory, maybe this is deserved.

Perhaps, but who has been overtaken by the mass-commodification of content? The guy who has a nice collection of good videos he has collected over the years, or the guy who downloads every last thing from scour.net just to have, to his 50 terabyte hard disk system in his dorm room, but never to actually watch?

The only objective measure of taste is popularity, and practically every best selling movie is from the past 25 years, e.g. Titanic, Star Wars, ET, etc., etc. If this stuff is "crap", why are the masses watching it in droves, at a time when there are so much more movies available to watch more easily than there were 50 years ago?

FROM: Paul
DATE: Wednesday September 6, 2000 -- 10:01:13PM

Terry,

Given your arguments, I'll agree that there needs to be some sort of middle ground reached instead of giving one or both parties involved full control over a digital work. I think my greatest fear out of this has been choosing to have content delivered to my TV legally and not being able to play it - not a pirated or commercial-free version of a movie, for instance.

If I plunk down $40/month for a mess of satellite channels, want to record a movie, and am told I can't - even though I did pay for a license for usage of that movie - that's no good.

Once I have that movie, well, that's the big sticky issue. I think a fair compromise would be some sort of protection that would not enable me to shuffle off x copies to my friends via the net or DVD-RAM unless some sort of minor fee was paid (for instance). I think DIVX has proven that a system that shuts itself off after a short period of time is not going to work (yet?)

Maybe an option is to just degrade the broadcast somewhat to the point where it's just not the original but is still acceptable. (Perhaps, then, consumers can plunk down a small fee to get the license to a full digital version?)

A lot of these issues arise from the fact that this is just so different than what we're used to. We can tape TV, dub that tape, spread it around, etc.

Insofar as the movies being crap goes, that spills over into a separate discussion (Ping? :) about the decline of movie quality coinciding with subversive and questionable marketing tactics. That, and I'm tired.

Great talking points here, everyone.

FROM: Robert
DATE: Wednesday September 6, 2000 -- 10:18:09PM

They're unions for the rich. They have a duty to represent the members as much as they can, whether it's necessary or not. If you don't like what they do, DON'T SUPPORT THEM!!!!

FROM: Terry Murphy
DATE: Wednesday September 6, 2000 -- 10:47:54PM

When I said what they barley understand , I meant they bearly understood how this kind of technology was going to explode, facilitating things like napster, and wide-spread .mp3 use.

Oh, the recording industry may be behind, but the movie industry is incredibly on top of things. I'm extremely impressed by how forward-looking they are, particularly with the DeCSS cases. Currently, there is no practical technology to pirate movies. They had the foresight to make DVD an encrypted format in 1997, before any Napster-like pirating technology was conceived of. You can use DivX to compress a movie to something like 600 MB but nowhere near anything you can download with a 56K modem quickly. In fact, the lack of practicality of transferring files has been part of the Slashdot crowd's defense of DeCSS! But as we all know, and as the MPAA knows, the technology will come soon.

The recording industry is indeed not forward looking. Their main mistake - putting perfect digital audio on an unecrypted format - is costing them dearly.

FROM: Terry Murphy
DATE: Wednesday September 6, 2000 -- 11:11:46PM

I think my greatest fear out of this has been choosing to have content delivered to my TV legally and not being able to play it - not a pirated or commercial-free version of a movie, for instance.

Well, I don't necessarily agree that the license to view a show on TV in realtime = a license to capture the program and watch it any time. If you capture a perfect digital copy of a pay-per view movie which cost $3 (or whatever they cost), but it costs $20 to get the digital media, something is very awry.

I think a fair compromise would be some sort of protection that would not enable me to shuffle off x copies to my friends via the net or DVD-RAM unless some sort of minor fee was paid (for instance).

You may recall the DAT format a decade ago which had built in copy protection. I seem to recall that it would let you make one single backup copy, but would not let you make another copy. This seems to be comply totally with "fair use" to me. Of course, this format was a complete failure, for whatever reason.

I think DIVX has proven that a system that shuts itself off after a short period of time is not going to work (yet?)


Yes.

I think DIVX was an insanely great idea. I rent DVD's all the time, and I absolutely loathe returning them. If for the same price I can get a disc which I don't have to return, can re-rent without having to go to the store again, and even have the option to buy outright, then that is a great deal! I didn't have a DVD player until after DIVX died, and I don't totally understand why it was not a success (i.e. did it actually fail commercially or was there just too much pressure from private advocates and the like). Personally, I think the idea was way ahead of its time.

Maybe an option is to just degrade the broadcast somewhat to the point where it's just not the original but is still acceptable. (Perhaps, then, consumers can plunk down a small fee to get the license to a full digital version?)

I've seen this proposed for music, but I am skeptical of its actual implementation. What's to stop somebody from breaking the encryption of the high quality format and distributing it?

I do not have any better idea of how to do it, but I am highly skeptical that content creators will win. I'm just glad I work for a hardware company!

FROM: Maria
DATE: Thursday September 7, 2000 -- 12:02:44AM

I just wrote a huge (90 page) research paper on copyright for school, and wanted to add a few points to the discussion:
When the VCR was invented, the movie industry was worried that profits from movies would go way down (people would wait for video rather than going to theaters, rent movies and record them for their own use and/or distribution, etc.). Instead, profits increased with video sales and rentals, in addition to an increase in box office revenue.
The same is the case with Napster/MP3s. Music sales have increased since their introduction. Furthermore, for many of the people who listen to MP3s to get an idea of whether or not they should buy the CD, it is not much different than music stores that offer a "listen before you buy" option.
Say I hear one song on the radio and decide not to buy the CD because it could be a waste of my money if I don't like the rest of the songs. That's no different than hearing that one song on the radio, downloading the rest of the album off Napster and, again, not buying the CD because I think it will be a waste of my money--except that in the latter scenario, there is the possibility that I WILL like the songs and I WILL buy the CD. I'm more likely to buy a CD if I know I like what's on it, than if I'm unsure.
Furthermore, the law that Napster is hiding behind, saying they just provide the service, not the music, is applicaple to some degree. The law was made after a court case involving pictures from Playboy being posted freely on a BBS. The decision basically states that BBSs and Online Service Providers are not liable for the actions of their users--which is what Napster is using as its defense. However, the law also stipulates that BBSs and OSPs are required to remove any infringing materials from their servers. Hence, Metallica's argument and the removal of nearly 600,000 Napster users.
This same argument could be used for cable TV. The TV company provides a service to their subscribers, and is not responsible for what they do with any material they record. But if cable TV subscribers are caught bootlegging copies of "Back To The Future" they recorded off the TV, the company should refuse them further service.
In any case, it seems you're only guilty if you get caught.

FROM: Ryan
DATE: Thursday September 7, 2000 -- 12:10:57AM

An interesting side note about CD duplication... if you have one of the consumer grade stand-alone CD writers, you can only make one digital copy -- you can't make a digital copy of a digital copy (Serial Copy Management System). Personally, this seriously pisses me off when it comes time to master my own music -- I prefer to record first to a CD-RW in case I make any mistakes and then copy that to a CD-R master. Unfortunately, at that point, I cannot make perfect digital copies of my own CD-R master.

Whatever your side on the music or movie issue, it's clear that there is a paradigm shift and everybody is going to have to adapt, and that's not going to happen without some good conversation (like we've seen here). Though I disagree with a lot of things you say, Terry (remember when we used to argue about female rap groups?), I love when you get into the discussion because the end result is a very provoking, productive thread.

:)

FROM: Terry Murphy
DATE: Thursday September 7, 2000 -- 12:36:50AM

When the VCR was invented, the movie industry was worried that profits from movies would go way down (people would wait for video rather than going to theaters, rent movies and record them for their own use and/or distribution, etc.).

Yes, but the movie industry figured out how to make money with video versus the theater: they release the movie in theaters first, and only after that has made money do they sell the video. The theater version clearly has additional value. What similar two products does the music industry has? Note: I agree that the movie theater industry is currently under no threat due to online piracy (but video sales and rentals are!)

The same is the case with Napster/MP3s. Music sales have increased since their introduction.

There is evidence both ways, and the two studies which I am aware demonstrate opposite sides. Moreover, the long-term effect of this has yet to be observed (Napster has only been popular for about a year and probably quadrupled in use in the past year)

Furthermore, for many of the people who listen to MP3s to get an idea of whether or not they should buy the CD, it is not much different than music stores that offer a "listen before you buy" option.

This may be true for "many people", but I certainly see no evidence that it is generally true. Many, many, many people have stopped buying CD's, or as many CD's, due to Napster and similar technologies. Read Slashdot and all sorts of teenagers brag that they haven't bought a CD in X many years because they just steal it instead. The internal documents at the creation of Napster Inc. provided evidence that they intended to put the record industry and record stores out of business.

Say I hear one song on the radio and decide not to buy the CD because it could be a waste of my money if I don't like the rest of the songs.

Why is the album bad by default? Many people would risk buying the CD for one song.

How about the single? How have single sales been affected by Napster?


That's no different than hearing that one song on the radio, downloading the rest of the album off Napster and, again, not buying the CD because I think it will be a waste of my money--except that in the latter scenario, there is the possibility that I WILL like the songs and I WILL buy the CD.

Yes, but again you assume that people would NOT buy the CD before hearing the songs. 12 million different people bought Britney Spears debut album, though only 2 or 3 songs were on the radio. Almost none of them heard the album beforehand but bought it anyways.

I can likewise make the argument, that people would buy the album, but would NOT buy if they heard it first. I can certainly think of many CD's I have bought which I wouldn't have bought if I heard them first. These would count as lost sales if I had heard them on Napster and didn't buy them but planned to otherwise.

Furthermore, the law that Napster is hiding behind, saying they just provide the service, not the music, is applicaple to some degree. The law was made after a court case involving pictures from Playboy being posted freely on a BBS. The decision basically states that BBSs and Online Service Providers are not liable for the actions of their users--which is what Napster is using as its defense. However, the law also stipulates that BBSs and OSPs are required to remove any infringing materials from their servers. Hence, Metallica's argument and the removal of nearly 600,000 Napster users.

I, frankly, do not thoroughly understand the legailty/illegality of Napster (I'm an engineer not a lawyer!) Part of the judge's decision against Napster has to do with the fact that they can prevent illegal files from being transferred, but choose not to (and it is technically true that they can). But the ISP can also (techinically - it would be monsterously difficult, but technically possible). So why are they not potentially responsible?

FROM: Terry Murphy
DATE: Thursday September 7, 2000 -- 12:48:15AM

Though I disagree with a lot of things you say, Terry (remember when we used to argue about female rap groups?), I love when you get into the discussion because the end result is a very provoking, productive thread.

I'm glad! On some web sites such as Slashdot if I dare exhibit a dissenting opinion I get moderated down as flamebait.

remember when we used to argue about female rap groups?

Actually, no, but I remember (I think) metal vs. rap debates. You were right, BTW. :-)

FROM: Maria
DATE: Thursday September 7, 2000 -- 1:05:23AM

There are two kinds of copyright infringement--direct infringement and contributory infringement. Direct infringement (as defined by MAI Systems Corp. v. Peak Computer, Inc.) is the defendant's making copies on his or her own system, and his or her access to the original copyrighted information. (i.e. someone who purchased, or otherwise obtained, an original Britney Spears CD, uses that CD to make MP3s and distribute them on Napster.) Contributory infringement provides for defendants' liability if they have knowledge of the infringing activity and contribute to the users' infringing conduct.
Therefore, Napster is indeed guilty of contributory infringement, which is why they were ordered to shut down. Why they were granted a stay is another matter.

Incidentally, being a teenager myself, in addition to knowing many teenagers personally, I know that not all teenagers (or people in general) "steal" their music. Maybe "many, many, many" people do, but I would be willing to bet that "many, many, many" other people don't.
We can generalize all we want, but it doesn't change the fact that some do and some don't. I just don't think it has as much of an effect on the recording industry as they'd like us to think.

FROM: Aaron
DATE: Thursday September 7, 2000 -- 4:06:20AM

First, I think everyone should read "Copyright and 'The Exclusive Right' of Authors" by L. Ray Patterson, a professor of law at University of Georgia.

Professor Patterson traces the history of copyright law from its foundations in English common and statutory law, through the writings of the framers of the U.S. Constitution, touching upon important court cases, the major changes of the 1976 Copyright Act, to todays issues with the DMCA, Napster, MPAA, DeCSS, and the like.

This paper reveals many misconceptions that people have about copyright, especially the history thereof. For example, there is no ownership of a copyrighted work. Copyright law does not grant the author any control over the work. Copyright law gives the author a limited, exclusive right to publish the work to the primary market. Some consequences of this are that published works are open to both parody and criticism, something that could be prevented if authors had control of the work and had to give consent to parody and criticism. The "first-sale doctrine" is what allows you to sell your used books to your favorite used book store. The author only has exclusive right to the primary market. Thus, you cannot re-publish a book that you bought, but you can re-sell it.

I think that perhaps the biggest problem with our current set of copyright laws is that they are founded on the notion that "publication" requires a physical medium. To publish a writing, you need paper; to publish a song, you need (say) audio tape or sheet music; to publish a movie you need film. Now, we can publish via electrons: ones and zeros. Publishing requires such little physical medium, that it is a negligible cost to publishing.

Traditionally, it was not cost-effective to violate an author's exclusive right to publish to the primary market. The cost of publishing on physical medium was too high for most people. Now, the bar for publishing digital works is so low that almost anyone with a computer and a reasonably fast net-connection can become a publisher. So, the cost of publishing is not so high as to discourage people from publishing to the primary market.

Another interesting consequence of going digital is that there effectively is no secondary market. Since the work does not reside on physical medium, you can't really have a "used" copy of a work. If I downloaded a digital song from some service, listened to it for a week, then decided to sell it "used", there is no physical medium to "use", nor is there physical medium transferred thus enforcing the transfer of the "used" digital song.

Again, I'm no lawyer or anything, but I think there is a lot to be learned in this paper.

I also highly recommend reading the discussion forum of the OpenLaw Project at Harvard University Law School's Berkman Center for Internet and Society . This forum is currently focused on the DVD CCA v. 2600 case from New York. It explores the ruling in great detail. Numerous precedents are discussed, and many arguments for and against the plaintiff and defendant are explored. I have no law education at all and I have found it to be highly educational and illuminating.

Aaron

FROM: Terry Murphy
DATE: Thursday September 7, 2000 -- 11:39:38AM

Contributory infringement provides for defendants' liability if they have knowledge of the infringing activity and contribute to the users' infringing conduct.
Therefore, Napster is indeed guilty of contributory infringement, which is why they were ordered to shut down. Why they were granted a stay is another matter.

Sure, but that doesn't answer the question: why aren't ISP's liable when Napster is. As I said, it would be technically possible for ISP's to prevent illegal piracy via Napster, so why aren't they liable but Napster is? Or even phone service?

This paper reveals many misconceptions that people have about copyright, especially the history thereof. For example, there is no ownership of a copyrighted work. Copyright law does not grant the author any control over the work. Copyright law gives the author a limited, exclusive right to publish the work to the primary market. Some consequences of this are that published works are open to both parody and criticism, something that could be prevented if authors had control of the work and had to give consent to parody and criticism. The "first-sale doctrine" is what allows you to sell your used books to your favorite used book store. The author only has exclusive right to the primary market. Thus, you cannot re-publish a book that you bought, but you can re-sell it.

Yes, but there is also a concept of a "license", which is almost entirely separate from a license. A good example is DIVX where you have the content, which is copyrighted, but you do not have a license to view it. You could, technically, make a license which says almost anything. Licenses have not been widely tested in courts, but I think the future of online media -- if it is to professionally -- will be backed by licenses.


Another interesting consequence of going digital is that there effectively is no secondary market. Since the work does not reside on physical medium, you can't really have a "used" copy of a work. If I downloaded a digital song from some service, listened to it for a week, then decided to sell it "used", there is no physical medium to "use", nor is there physical medium transferred thus enforcing the transfer of the "used" digital song.

In some software markets, you can transfer a license between multiple people, and that consists of nothing more than some numbers and letters. I can see the same thing happening in the online music market.

One of the problems with online delivery where "the thing" is indistinguishable from a copy is that it is confusing to collect them and know that you have the thing. This is one reason I believe EMUSIC will not be successful.

FROM: Aaron
DATE: Thursday September 7, 2000 -- 6:41:11PM

As far as licensing goes, check out this message on the OpenDVD forum:

http://eon.law.harvard.edu/archive/dvd-discuss/msg07922.html

The conclusion, based on a reply by the Libraries Association, and founded in case law, is that licensing of content (i.e. published works) is bogus. Once the publisher has recieved compensation for the first sale, the publisher's has no rights to control the access to the work by the purchaser. Ergo, controlling access, via licenses or CSS or any other means flies in the face of copyright law.

FROM: Marcus Mackey
DATE: Sunday June 16, 2002 -- 8:11:20 pm

I was re-reading through the Pings To Do (recent subscriber after all of this time pinging) and well, I decided to offer some statements on the discussion.

Terry, your commentary on why ISP's don't stop it is rather easy to fathom. Why would an ISP chop off the hand's that feed them if they can just play ignorant to it when they're not being physically attacked by the RIAA/MPAA to do so? If they can see no evil/hear no evil about it, they'll ride it out as long as they can 'til they become the subject. Not to mention things are at the stage now where the RIAA is scrambling wildly to stop what it can't, won't ever be able to without locking up 90% of the U.S. population with a computer, decent internet access (56k is still decent and capable of downloading MP3's), and a CD-RW. This will only get more profound as the U.S. goes more and more broadband, and CD-RW's get replaced by DVD-R drives.

I mean, the anti-piracy commentary has been floating around for years in other sectors without any successful model that doesn't effectively violate the consumer's rights, implicitly; and the government will let the people win over industry in the end if it has to (outnumbered). Even a good percentage of AOL users exhibit these practices, have since the service came online! Has AOL successfully stopped piracy? No more than it's prevented child pornography, or provided educational chatrooms. Hell, it even gave up on administration of chatrooms, opting for a user-definable "Warn" function. AOL, like most ISP's, is in a state of chaos on so many levels... so even if they "COULD" contain things, would they if it meant cutting profitability? As the saying goes... it's all about the Benjamins.

Then again, it's like the whole adage... if a few million/billion people begin using services like Napster/Gnutella (XoLoX, Limewire, Mactella, KaZaA, Morpheus, et al.)/Blubster/OpenNap/Hotline/Carracho/IRC/Aimster etc. etc. etc.; how do you police that? Do you put a few million/billion people in jail (mind you, overcrowded as is and there's people that *NEED* to be in that aren't for far more heinous crimes)? As a country do you start charging every violating user for every song they've downloaded, and drive the country into bankruptcy and depression? How do you control people from other countries that downloaded from someone within your continent when other countries may not or won't enforce your standards?

Do you just accept failure and start building a new business model based around some other innovating product? I think that is the only solution... in a country where our government can't see the travesty in what Microsoft has enacted against Netscape, Sun, Apple, Caldera, Gateway, Compaq, and numerous others... how are they to prevent what it's own people (in larger masse) do to their free market industries. Violate "We the People..." and you're ready to see your political power become crippled/executed. Remember where the political power comes from... bottom up. Remember that a Bush with no political agenda whatsoever won over a Gore who had some plans; and Bush continues to sit idly minding his p's and q's hoping for continued support. One false move and the Democrats will eat his lunch next election... lord knows he had a 60 million dollar budget, 20 million larger than Gore's, and won by a piddly amount.

The RIAA in voicing their concerns, have in effect escalated things by the public relations disaster the anti-Napster sentiments generated. They've in a sense "BRANCHED" piracy out by their own p.r., enforced making it a commonality by taking away something from the people that was given and hyped in the first place, and in turn have put themselves and a few other industry's in precarious positions to stop the unstoppable as it's expanded fostering greater piracy in other segments.

As much as the Government would like to assist (obviously, the RIAA and MPAA do fund the Government, and the Judicial branch has sided with those parties), they can't. Why? Simple... you can't shut down the internet. There is "NO WAY" to stop piracy once it gets started... because the minute it starts, and the minute you build badwill (as opposed to goodwill) within your customers... is the minute that you'll watch them do exactly what you suggest they can do (think back to how Prohibition, like the war against drugs, failed and you'll understand the reverse Psychology it implements). Piracy wasn't as widespread as the RIAA made it out to be... but the more hubbub that was presented, the more people became educated by seeing the explanations on CNN and gave it a shot themselves. Those that came in late on the game continue to enjoy it, those who were early on the game feel bitterness, and the RIAA is left trying to chase down the endless proliferation of companies that sprout up offering Napster-like services. They've multiplied en masse, and will continue to do so. The best point of this... the RIAA recently went up against the founders of the engine for KaZaA/Morpheus and a few other Gnutella search engines. So, what did they do? They admitted defeat... but started up another company with the same business plan! LoL Why? The RIAA can kill one company with it's $, but how many others can it kill repeatedly before it bankrupts itself in court as things continue to proliferate?

I personally feel that in the beginning, Napster was a boon for the industry and it failed to use it for the pluses 'til it was too late. Now it is an exception that has become a situation where it will cease to make the corporate organizations money, but put the money back in the artist's pockets, or free artists from constraining mindsets and open the industry into a wider base of non-controlled artists. Imagine if you will, what happens if a Dave Matthews isn't told what to do with subsequent releases to dumb down his intricacies to appeal to a wider base... you basically make it so music doesn't get watered down from it's original creative tendencies. Even the more digital technology advances, is the more we'll be seeing lower budget movies that match the full features, especially as piracy cripples things back to a level playing field based on profitability. At this stage... irregardless of what anyone does, things will return to creative normalcy; and the business model will become altered. I don't see any potential to stop it.

Let's face it, most artists in the recording industry make around 1-3% of a release's gross sales. The costs of production of a CD in the modern era has dropped, yet CD prices have grown increasing the profit margin per CD. The RIAA has openly (as a result of the badwill) set forth to cut costs of retail CD's, with companys like Virgin Atlantic and Sony contemplating selling newer releases for $10 to jumpstart the industry again. It's not doing it because the damage is done...

So then they attempt to devise anti-piracy technology that in a way violates the end-user's licensing agreement by prohibiting making the backup copy they're entitled. This has also been circumvented by, of all things, using a Sharpie on the outer track of the anti-piracy CD's.

The point is, without a change in format (which more than likely wouldn't gain adoption as the trend has already begun and there's no stopping it as widespread as it's become), piracy will continue unabated. I feel it is up to the industry now to learn from the situation, product new innovative product, and/or start a new business model.

My suggestion, the music industry and movie industry should look at what it gives the public. Want to increase product margins? Show some innovation. The MPAA has shown a bit of this as more and more collector edition movies, in custom casings (tins) are being produced. In the music industry, getting a custom jewel case (think about TOOL's releases such as Ćnima and Lateralus and Undertow) with intricate and ornate artwork is as much a product plus as any. The CD itself isn't just a mass cheaply made product with high margins if you contribute more than just a inkling of innovation in packaging. It's the difference between an Apple and a Dell... something that's finitely packaged, detail-minded, and visually outside of the box, and another that's just the same old same old in the same old box. This is how people in the Experimental/Noise music genre (very underground, don't know if you could get anymore hardcore in that regard) do their releases by outdoing each other as much as they can on packaging. I feel the RIAA is being relagated to a niche player... and I feel in many aspects, this isn't necessarily a bad thing, even if it does violate laws and statutes. Yet... laws are made to be broken, as much in nature (keeps scientists busy) as they are in industry/business.

Granted, this could boost profit margins and pricings per-item. Granted, the mass volume sales will go away, but the point is anything sold in mass volumes usually comes down in price eventually in most industries (look at all of the PC makers that have died in the last 10 years since inception and it makes it clear... much as the auto industry has since day one). Granted it takes longer for some... but look at the low pricings of VCR's as it's a dying technology (or a technology with a shelf-life). DVD is replacing it, but it's piracy concerns will accrue... as they've already begun via DiVX (not the rentable DVD format but the MPEG 4 parity that produces exceptional quality rips from DVD with only marginal losses) and will continue with MPEG4 rips. Anti-piracy measures have been slow to come into place, and it's undoubted that this will become one of the next frontiers, much as AAC will replace MP3's with even better quality (closer to perfect than before) sound and smaller files.

Once you open Pandora's box... it's open. Nothing you can do but live with the consequences and start over. Sorta' like Marc Andreesen (former developer of Netscape and Mosaic who helped shape and innovate the web industry) has...

My 2˘...

FROM: jim
DATE: Monday June 17, 2002 -- 12:58:25 am

Marcus, I think you might have gotten all the way up to two bits worth.

FROM: Keith Leary
DATE: Monday August 9, 2004 -- 2:55:36 pm

2004 follow up post:

Terry Murphy wrote "
One of the problems with online delivery where "the thing" is indistinguishable from a copy is that it is confusing to collect them and know that you have the thing. This is one reason I believe EMUSIC will not be successful."

Apple's I-Tunes emusic service recently sold it's 100 millionth song. Apparently, E-music is a highly successful venture after all.
Meanwhile, the RIAA continues it's orgy of lawsuits against individual song-swappers. It's not a good idea to sue your customers.
Some of the major record labels drop CD prices, as online song sales soar in popularity. By some accounts, 50% of all songs will be sold over the internet within the next 5 years. Albums, as a whole product, decline in popularity, with customers instead prefering to buy single songs here and there, rather than the compilations that are albums.
CNN and Techtv quote experts predicting the CD-based music album will dissappear completely as a physical medium within 10 years.

In the mean time, ridiculous laws like Orrin Hatch's ill-conceived INDUCE act are proposed:

http://www.brokenremote.tv/modules.php?op=modload&name=News&file=article&sid=316

http://www.wired.com/news/politics/0,1283,64297,00.html?tw=wn_tophead_1

FROM:
DATE: Wednesday September 14, 2005 -- 1:14:01 pm