Napster throws Metallica a curveball.

May 11, 2000 8:09 AM

Napster throws Metallica a curveball. Napster has been pointing out to its kicked-off users a certain provision of the DMCA: If an ISP kicks a user off a service for violating copyright, that user may file a counternotification if they believe they were wrongly accused. The plaintiff (Metallica) then has 10 days to respond with a lawsuit directly against that user. If they choose not to respond, the ISP must restore the account. If enough users (among the 300,000 blocked) file counternotifications, Metallica may wish it had never begun this process.
posted by daveadams (12 comments total)

I reality though, how many of those booted from Napster do you think will really take the time to file the counternotification? There has to be many for Napster's curveball to actually work.

If just a few file these, then they're most likely going to be taken up on their counternotification. If many, many folks file them, then maybe Metallica will back down. It could be tricky, and Napster's users are the ones who are in the heat now, not Napster.
posted by misterioso at 8:14 AM on May 11, 2000

On top of that, the counternotification requires that the person give their real name, address, etc. -- and that means that Metallica can then sue them personally for pirating their music. Metallica probably has all the records that lead to the 300,000+ name list; if someone wants to get sued in Federal court for theft and distribution of stolen goods, then they should file the counternotification.

I really think that Metallica's in this for the long haul. If 10,000 people file counternotifications, then Metallica's probably ready to file lawsuits against these now-identified pirates (rather than 10,000 Napster usernames, previously unattached to live, actual human beings from whom judgements can be extracted).
posted by delfuego at 8:44 AM on May 11, 2000

If I was on the list, I would file the counternotification. It is one step away from a court filing, and I would certainly call Metallica's bluff. Sue me.

The bulk of working musicians struggle to find an audience and make a living. The few successful musicians make megabucks, but are tied into a distribution and marketing system that disempowers them. Some artists understand this, but most just want to protect the only system they know that works for them.

Napster could well disappear, and that wouldn't be in the interests of the artists, only the recording companies. Napster and MP3.com are businesses; they want to survive and need revenue models within a legitimate legal framework in order to do so.

The artists need to understand that the alternative is Gnutella and apps like it that won't be accountable to anyone.

Napster isn't killing music; the music industry is killing music.
posted by tranquileye at 8:51 AM on May 11, 2000

Napsters information page about the curveball. I still wonder why you would go after the fans. The public relations quagmire (sp?) or "can of worms" can't be good for a band that is having to protect its "art." Can Napster now use this information to their advantage since all 300,000+ can't be named in the suit?
posted by brent at 10:02 AM on May 11, 2000

I know at least one person who was banned who had never traded Metallica MP3s-- or, in fact, ANY MP3s (he had only signed up for Napster the day before). I'll be sure to tell him about this.
posted by wiremommy at 10:41 AM on May 11, 2000

what could they possibly possess as proof? If you are one of the blocked and do deside to go with the counternotification, make sure you blow away any illegal software or mp3s on your machine. If they do contact you within 10 days, what can they possibly do? If their lawyers really wanna spend their time going after Joe Blow form Idaho, then let them. I would have no problem filing a counternotification.
posted by Doomsday at 2:25 PM on May 11, 2000

I was banned, and I don't think I'm filling out that form. Even though I think it's highly unlikely I'd get into any legal trouble, I just don't like the fact of giving my name and address where a lawsuit is invovled.
posted by Mark at 5:32 PM on May 11, 2000

1) You don't have to "trade" anything to get banned. If you start up Napster and you have a Metallica MP3 on your hard drive (most likely in a folder with the rest of your music), you will show up in the search, and hence are making things available that "should not be". It's a passive process, not an active one.

2) Just for clarification, the counter notification, per the DMCA, must contain the following:
  "a)A physical or electronic signature;
  b) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
  c) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or diabled;
  d) The subscriber's name address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the service provider may be found, and that the subscriber will accept sevice of process from the person who provided notification under subsection (c)(1)(C) or an agent of such a person."

At that point the complaintant must subpeona the service provider to get the identity. So if a flood of people server counternotification all at once, Metallica might rethink before it ever serves one subpoena.

The funny thing about this is that the process of simply passively making copyrighted works available via Napster, by selecting your music folder in the setup/preferences, is banned. That means that a user would have to move copyrighted works to one directory and non-copyrighted works to another, even though Napster downloads each type into the same directory. Wacky.
posted by fooljay at 12:32 PM on May 12, 2000

Does Napster show all the MP3's on your hard drive, or just those that you have placed in specific directories to share?
posted by harmful at 1:26 PM on May 12, 2000

Only in the directory you specify. Or none at all if you so specify...

There's an article on CNet about the circumventing of the ban...
posted by fooljay at 1:47 PM on May 12, 2000

Dr. Dre's list is coming next...

posted by fooljay at 1:47 PM on May 12, 2000

Did I get this article from here? Always so confusing.

I love the mixed messages. "We don't condone any of the following activity, but oh--fsck Metallica!!"
posted by fooljay at 1:49 PM on May 12, 2000