July 28, 2000

2:59 PM

This just in:Napster's injunction to shut down tonight at midnight has been stayed (I'll add a url to a story when CNN writes it - BTW, how crazy is it that the napster news gets top level precedence as breaking news on a site as big as CNN? screenshot)
posted by mathowie (19 comments total)

CNET already has the story in brief.
posted by wiremommy at 3:27 PM on July 28, 2000

Mtv News 1313 is also profiling Napster, the Injunction and everything today. On the East Coast, it's on right now, this being 7pm.
posted by Cavatica at 4:09 PM on July 28, 2000

As long as I've been alive, "MTV News" has always been an oxymoron. But, having not been able to stomach the channel at all since the early '90s, I have to ask: What, pray tell, is the "1313" supposed to represent?
posted by aaron at 5:55 PM on July 28, 2000

It's the number one news story on the New York Times website, too. Isn't anything else going on in the world?

posted by dmitri at 6:17 PM on July 28, 2000

It's not supposed to be 1313, it's supposed to be 1515, as in 1515 Broadway, the building number where Viacom, MTV, VH1, etc. are located.
posted by riffola at 7:36 PM on July 28, 2000

This could very well be the most important news story regarding the Internet since its existence. A lot hinges on this. Some of you are gonna think I'm way out on a limb with this one, but try to follow the logic.

Ultimately, the reason Napster is being shut down is because some (most) users of Napster are trafficking copyrighted materials. A small percentage of music is from people who either don't mind (say Grateful Dead for example) or artists who purposefully put their music out on the Internet so it could get heard. However, the vast majority of the music is 'Top Forty' or otherwise from big record labels and nationally popular artists.

This is stuff the users are doing. Napster itself just created the forum within which this can happen. Mp3.com is being attacked for similar reasons. They call themselves a "Music Service Provider" and both Napster and Mp3.com believe in regards to any copyright infringement, they are protected from the same thing that protects all Internet Service Providers from being punished for the acts of their users.

They're just the forum. They're not actually doing anything illegal. However, within their forum, potentially illegal happenings can take place.

If I'm using MP3's Beam-It software, verifying my possession of CDs to put into my collection, I can opt to include CDs that my friends give me. Some can argue this is illegal. I still say its fair use, but that's what got MP3c in trouble.

Again, they're not doing the allegedly illegal activity. They created a service in which allegedly illegal activity can take place.

AOL and many ISPs have been brought to court over similar matters. They were found not to be at fault for the actions of their users. When possible, from that point on they try to put up safeguards stopping illegal activity, but those performing such activities eventually simply route around such obstacles. Is that AOL's fault? No. They make reasonable attempts to curtail such activity, and they're in the clear.

If Napster and MP3.com are shut down regarding the trafficking of music, AOL can be held liable in the future for any pervert using their system to find small children to sexually assault, or for anyone using AOL to communicate about drug trafficking or other legally questionable activities. Any ISP can be held liable.

This will NOT stop with mp3 file. It's much more far-reaching than that. Think I'm too far out in left field? Think they'll stop with music? Check this out.

U.S. District Judge Marilyn Patel said "If you design a site designed to enable infringement, you can't stand by and claim you don't know what's going on,"

By this line of thinking, if you design any kind of Internet Service Provider software made in such a way as to allow potentially illegal activity to occur, you can't stand by and claim you don't know what's going on. This would not be limited to mp3 oriented software. Theoretically, the people who made mp3 technology in the first place can be held liable. They created software that blatantly allows any kind of audio material to be transferred over the 'Net. Copyrighted or not. Any technology that allows the distribution of mp3s can be held liable. NOT just Napster. And the actual twenty million people who are performing this allegedly illegal activity (which I still insist falls under fair use) are getting away without any punishment. It is the conduit through which this activity was occurring that is being shut down. Not the actual activity itself.

The Napster ruling can make or break the future of the 'Net. The ramifications of this will be felt for several years to come.
posted by ZachsMind at 7:48 PM on July 28, 2000

While I understand your worries, Zach, Judge Patel's statement doesn't speak to service providers that can be used to traffic illegal materials, rather he speaks to services that are built to traffic illegal materials. Napster can try to hide behind as much "we're about exposing unknown artists" rhetoric as they want, but we all know what it was invented for-- which happens to be the same thing it's used for most often: piracy.

Don't get me wrong, I love using Napster, but there's just no valid legal defense for the current version of the software such as it is.
posted by bryanboyer at 8:42 PM on July 28, 2000

It's amusing to me just how much attention the mainstream media is talking about Napster. In fact, even Dick Cheney got a question from Matt Lauher about his opinions on Napster.

My 2 cents? Napster was built with the specific purpose of facilitating intellectual property theft in the first place and therefore will be very difficult to defend. While there is freenet and gnutella and countless other methods including hotline, irc, or ftp to get copyrighted material, my problem with napster is them trying to build a business model by illegally co-opting other peoples' intellectual property.
posted by gyc at 10:08 PM on July 28, 2000

I tend to agree. Frankly, they're no better -- and perhaps worse -- than the hated music industry cartels. I do believe, though, that the outcome of this in some form will be a co-opting of Napster such that artist payment is somehow possible. That won't stop the clones from trading for free -- but it may push them underground (well, keep them there). The trouble is, I'm not at all certain that either Napster or the RIAA recognize this yet.
posted by dhartung at 10:31 PM on July 28, 2000

> While I understand your worries, Zach, Judge Patel's statement doesn't speak to service providers that can be used to traffic illegal materials, rather he speaks to services that are built to traffic illegal materials.

The word you're looking for is 'scienter'; roughly 'evil mind', or an *intention* to do wrong. It's not a crime, but it's usually a required *element* of a conviction for a crime.

The question that arises here is this: is 'evil intent' enough to convert a third-party action into contributory infringement? I think everyone here agrees that Napster wouldn't be in nearly as deep shit if they hadn't been sniggering behind their hands about how easy they were going to make it for music listeners to put a hurtin' on the music industry.

While the intent to use the service for illegal purposes (setting aside for now whether those purposes *should* be illegal, and if so, if they should be *criminal*) certainly can convert the *users* from fair users to infringers, the question is still outstanding whether the frame of mind of the *service operators* should have any bearing on how they are treated legally.

Would we, collectively, treat them as criminals if we didn't have evidence of their opinions? If not, then we shouldn't treat them as criminals *now*. Theoretically, you can't be arrested for your thoughts in the US.

Yet.
posted by baylink at 11:48 AM on July 29, 2000

While the intent to use the service for illegal purposes certainly can convert the *users* from fair users to infringers, the question is still outstanding whether the frame of mind of the *service operators* should have any bearing on how they are treated legally.

I disagree. Napster can be put in the same class as the so called "cop killer" bullets-- 99% of its use is illegal. How often do you need to shoot through kevlar? How often do people exchange legal mp3s? Granted, I'm sure the latter happens more often than the first (which is a good thing), but that doesn't change the fact that napster is a piece of software which primarily facilitates illegal exchanges, if for no other reason than the sheer number of illegal mp3s far out numbers the amount of free or authorized files out there.

Again, I love napster, but there's just no valid of justifiable business facilitating the unchecked exchange of others people's IP. You know, I don't see gun shops trying to sell kevlar piercing bullets, but I bet if I wanted them I could find them. Napster should taken a lesson and never tried to convert their existing product into a business.

Which brings up an interesting question: If Napster is forced to abandon their current product will they be able to come up with something more legal/sustainable? What would that product be? I'm inclined to think it would be some sort of napster clone with micropayments built in...

Theoretically, you can't be arrested for your thoughts in the US. Yet.

Try sending threatening emails to the whitehouse or accumulating large amounts of bomb making supplies then think about that again. I don't think the question is "would we treat[people] as criminals if we didn't have evidence" so much as it's a matter of what we consider evidence and how much of it need there be. But that's the thing, it's painfully obvious what Napster is used for!

In both the Napster and MS cases these companies are saying the the courts and to the American people, "You are stupid, so we will now defend ourselves on technicalities and you'll never be the wiser." I, for one, would be much less against napster if they weren't so fucking smug.
posted by bryanboyer at 12:16 PM on July 29, 2000

If Napster is forced to reinvent itself with micropayments or some other scheme, the masses will not go along with it. Napster will be properly neutered by RIAA's Big Money, which will then move on to tackle the other hydra heads that stand it its way of global domination of music. Then Hatch and Leahy will drag RIAA back into the senate room and talk about anti-trust issues. I can't wait for that part. I hope Courtney Love gets Lars Ulrich's seat on that day. Should be fun.

I went into Napster again today. Have had the software on my computer for months but haven't used it much. Decided to give it one more go before it goes away completely. I just can't seem to appreciate it. I still want to support the idea. Free transmission of music for the sheer enjoyment of sharing with no interest in money should have its place on the 'Net, just as bloggers and journalers freely share thoughts and ideas with one another.

Still, despite the fact I want to appreciate Napster on the simplest level of using the software, I can't. It's boring. The idea that Napster is useful to find out about new artists is a joke. There was ONE GUY who came into the chatroom while I was there and asked us there specifically to listen to his band play. I did. It was alright. But I can't just actively SEEK OUT new independent bands. If I don't know the name of what I'm seeking, there's nothing to search for. Maybe if I really did like Madonna and Metallica and all the crap RIAA's been spewing at us for decades... I've just been looking for something new.

Mp3.com is MUCH better for that. Between mp3c and actually going out to local club venues here in Dallas, I now have a very clear picture of what the local music scene offers. Napster didn't help me with that in the least.

But if what Napster is doing is wrong, then if Senator Hatch wants to make a copy of his CD on cassette so he can listen to it in his car, that's wrong too.

On practically every CD I own it says, "Unauthorized duplication is a violation of applicable laws." It's in teeny tiny letters. Most people probably don't even notice it. This isn't something a consumer can argue about. This is not negotiable. If you don't like it, the only option is to not buy the CD. I mean you would think, if you purchased the CD and you take it home and you now own it, you should be able to do what you want with it.

If the RIAA is able to follow up on their little threat in the fine print, I'll just go back to what I was doing before the Internet reinvigorated my interest in purchasing music. I'll just stop buying CDs.
posted by ZachsMind at 9:01 PM on July 29, 2000

Agreed, but we tend to just ignore "Terms of Service" BS, when what we should do is call them on it and en masse say if they want to sell this product they'll take that crap off of it.

When I buy an apple from a grocery store, that grocer can't tell me whether or not I can share it with my best friend. Once it's in my hands, it's MY apple. If I buy a one hundred page spiral, rip out ten pages and hand it to someone who asks for it for free, the guy who owned the office supply store I bought the paper from can't come running up and telling me that's unfair use. That I'm taking out of his mouth "potential revenue" from the person who's borrowing paper from me.

Yet 'potential revenue' is a viable claim in some courts. Yet if I buy a CD of Metallica, Lars Ulrich can tell me what I can and can't do with my copy? That's power, man. Must be neat to have that kinda influence over all these people's personal property all over the world.
posted by ZachsMind at 8:57 AM on July 30, 2000

But if what Napster is doing is wrong, then if Senator Hatch wants to make a copy of his CD on cassette so he can listen to it in his car, that's wrong too.

Nope. According to the latest revision of copyright law with regard to recorded materials, it's legal. So is making a mixed tape/cd -- for yourself. It's not the duplication that's a problem, it's the redistribution that's the problem.
posted by Dreama at 10:09 PM on July 30, 2000

Yes, didn't anyone learn in school that sharing is bad.

When you brought gum to class, you only brought enough for yourself.

Hey, its fun to legislate morality. Look at how well it's working with drugs.

The internet was made for sharing. It seems resistent to any change to that concept.
posted by john at 12:19 PM on July 31, 2000

I wrote:
> Theoretically, you can't be arrested for your thoughts in the US. Yet.

Bryanboyer, raising a very nicely designed strawman, replied:
> Try sending threatening emails to the whitehouse or accumulating large amounts of bomb making supplies then think about that again.

Um, Bryan? I *did* say, "think", didn't I?

It's not illegal to think about threatening the president. It's not, yet, even illegal to say to your friend "You know, I'm gonna waste that bastard one'a these days." It's only illegal to actually say "Hey, Mr. Clinton? Make your will."

It really doesn't matter. This is *going* to litigate; it *has* to. If Napster even tries to stipulate, I'm flying to New York with a gun.

(See, it's not illegal to threaten the president of Napster, Inc; only the president of the US. :-)
posted by baylink at 4:21 PM on July 31, 2000

I was under the impression it is illegal to say you're thinking about killing the president, or any high-ranking federal gummint official. You probably won't end up in jail or anything unless the Secret Service thinks you're really serious about it, but if you said to your friend "You know, I'm gonna waste that bastard one'a these days" and your friend ratted on you, you can expect to at least end up spending a few hours explaining yourself to the guys in sunglasses who talk to their lapels.
posted by aaron at 4:45 AM on August 1, 2000