Looks like Napster is still treading water...
February 12, 2001 10:56 AM   Subscribe

Looks like Napster is still treading water... after the courts feel that the case is a little 'Overbroad', whatever that means.
posted by Cavatica (37 comments total)
The judge in the original case will have to modify her decision, but for all intents and purposes, Napster lost.

The judge disagreed with each of Napster's many arguments, including their creative application of "fair use" in copyright law. The appeals judge said the initial decision was "overboard" only in that the record companies should notify Napster as to what song are infringing copyright. Napster has said that they will shut down the entire service before doing this.

Gnutella, anyone?
posted by tranquileye at 11:31 AM on February 12, 2001

OpenNap, with a Gnutella/Freenet-style distributed indexing system for metaserver IP addresses. Now that would be nice. Avoids the current inefficiencies of Gnutella, but provides some of its decentralised protection.
posted by holgate at 11:42 AM on February 12, 2001

Not that this is related or anything, but with the whole napster "controversy", I can't help but wonder, how does Napster MAKE money anyway?!?! Do they have any sort of income at all?
posted by punkrockrat at 11:46 AM on February 12, 2001

VCs, and investments from Bertelsmann.
posted by ritualdevice at 11:47 AM on February 12, 2001

how does Napster MAKE money anyway

This question is answered in their FAQ.

posted by idiolect at 11:51 AM on February 12, 2001

Hey, wow. I didn't know that Napster founder Shawn Fanning invented peer-to-peer software. All this while I was thinking it was an ages old concept!

Thanks, CNN! Learn something new every day!

posted by jammer at 11:57 AM on February 12, 2001

Napster, Inc. has not chosen to make its business model public at this time. Napster, Inc. is a privately-held company.

Some day we'll all look back and talk about those crazy dot-coms and the VC's who supported them.
posted by milnak at 12:15 PM on February 12, 2001

the pic that accompanies this article is a piece of clipart majesty!
posted by judomadonna at 12:28 PM on February 12, 2001

50 million Napster users? RIAA must be out of its mind. The injunction states the plantiff must provide lists of the copyrighted music/artists it wants off of the Napster books. And then once that is provided it will be up to Napster to police the users who are trading same...just as they have been doing over the last few months. (by disabling the user)

So now maybe we will see the artists getting involved much like what happened when Rage Against the Machine fans were disabled (me included) for trading their music. The band actually got involved, apologized, told their management to cut it out, and proceeded to put up MP3s on their own site to make up for it.

Quite frankly I've purchased more CD's over the last year than ever before due to Napster. And I've not been too supportive of artists such as Eminem (bullsh*t rebel that he is) for being a spawn and railing against Napster. Of course I believe Napster may be one of the reasons he grew to the popularity he is enjoying now.
posted by oh posey at 12:33 PM on February 12, 2001

"the pic that accompanies this article is a piece of clipart majesty!"

heh heh
posted by jennyb at 12:42 PM on February 12, 2001

I definitely bought more music since Napster. Without a doubt my exposure to new stuff, and even old stuff has tripled. Just ask my credit card company. The coolest thing for me about Napster was being able to finally check out all those bands that people would recommend but I was too chicken to go buy. I ended up buying several bands entire catalogues thanks to using Napster as an introduction. Of course, I also burned my share of CDs that I wanted to listen to but would never have paid for...like Eminem. I mean, how many times can you listen to an Eminem album before the joke wears thin, maybe twice? Ultimately, for me it became more about giving money only to those bands who I felt truly deserved the money.

I'm going to miss having Napster as my own personal listening station. The recording industry has enjoyed boosted sales as a result of Napster, now will see if the reverse is true.
posted by ritualdevice at 12:48 PM on February 12, 2001

Robert X. Cringely's latest article is a compelling defense of Napster and why it should remain free to the end-user. Read it!

posted by saturn5 at 12:59 PM on February 12, 2001

Well. This proves it. The universe is absurd.
posted by sonofsamiam at 1:33 PM on February 12, 2001

When you live where I do, you rarely get any chance to hear any new artists. Napster gave an chance to listen to new music that most mainstream stations would never carry. The RIAA is just scared that it's chokehold over distribution channels may be compromised. The irony is that they just think shutting down Napster will give them that control back.
posted by toastcowboy at 1:40 PM on February 12, 2001

I've always maintained that--even if Napster were to charge--there's no real way to regulate the stuff on napster because you can change the names. After all, if it's called "The Grateful Dead - Friend of the Devil (From American Beauty)" you can guess what it is, but what if it's "Friend of the Devil (The Dead)"? Or "Friend of Devil (Live)"? Sure, you might be able to tell if you listen to it, but that's more or less impossible.

Aargh... the more I think about it, the angrier I get.
posted by jpoulos at 1:43 PM on February 12, 2001

Although I "knew" what the whole Napster thing was about, I didn't really get it until I spent 3 hours looking for an MP3 of "Billy Don't Be a Hero" one day. I wasn't looking for a freebie, but I wasn't willing to pay $14.99 for a "Great Hits of the '70s" collection, either. All I needed was that one song.

After a fruitless (and not terribly amusing) search, I downloaded Napster on a lark. Five minutes later, Billy was on my disk. Two versions, even.

That's when both sides of the Napster debate crystalized for me. On one hand, I found exactly what I was looking for. On the other hand, the song owner (whether artist or evil record company) never got my dime.

posted by idiolect at 1:53 PM on February 12, 2001

The trouble is that the people who use Napster to find an old song that they just want to hear or the people who use it to preview music before actually purchasing it are apparently not the norm.

Last Friday, ABC's Nightline did a profile on a bunch of Americun youts who have been engaging in peer to peer file sharing of everything from music to television shows to software and computer games. None of them expressed any willingness to pay for the things that they were currently getting for nothing. None of them expressed any concern that they were violating the law by burning literally thousands of discs of pirated material. And none of them could offer any explanation of why copyright laws did not or should not apply to them. It was frightening how much of a sense of entitlement these little morons had.

And it is that, more than anything, which will continue to keep this fight going -- the people who think that they have a right to whatever they want, however and whenever they want it, ownership be damned -- are always going to be a threat, and there will always be efforts to contain them.
posted by Dreama at 3:08 PM on February 12, 2001

jpoulos, you think they can't identify music apart from the name? Try the software that will name that tune. It's probably a trivial pattern match, actually... only the I/O and back database are problems.

Dreama, that was a pretty good Nightline (little new for you and I, of course). The transcript and video.

I'm not so sure that sense of entitlement isn't justified. Only in the 20th century did music become a commodity. Besides, markets don't work on whether or not copyright protection is rational or people are irrational. The technology has changed, for good. Copyright, as a concept, may become obsolete.
posted by dhartung at 3:30 PM on February 12, 2001

In Australia cd's are overpriced to protect local recording artists. F*ck them, f*ck the record companies, i have not bought a cd in many years and i will not ever again. Napster does allow me to get that one or maybe two songs that i really want.

The fast pace of technological advancement is going to make the world an interesting place.
posted by Zool at 3:59 PM on February 12, 2001

This is a lot like home taping in the 1980s, except the record companies think they should shut down peer-to-peer rather than find a way to make it work for them. What we're hearing is the cry of the dinosaurs as they die.
posted by tranquileye at 4:22 PM on February 12, 2001

Dreama, who do you think owns the TV stations that paid good money to hand pick those particular kids? Do you honestly think you're getting anything close to an unbiased representation of the Napster user community by watching a story crafted by a network? You would be naive to assume that the package you were fed represents the "norm".

It's not the liberal media, it's the corporate media, remember that. Exactly the same villains who are responsible for shutting down Napster are putting the news on the air and the magazines on the stands.

One thing that disturbed me is that we had yet another example of some judge not being able to understand technology. The decision handed down said that a computer does not qualify as a recording device as defined by (some act who's name escapes me). Really? Maybe they'd like to come check out my home studio, entirely PC based. What narrow definition resulted in this decision? These are the same judges who don't understand how an OS and a browser can be integrated, and probably have never seen either.

As for the example that idiolect came up with, I wouldn't feel too bad. By the time a song like that makes it to a compilation CD, the artists has long since stopped seeing a cent of the profits.

Which brings me to another pet peeve, out of print material. Napster was great for finding out of print material and rare tracks! How is it stealing from anyone if a company lets a record go out of print? If they wanted to make money on it wouldn't they find some way to produce and distribute it? Should this material forever be lost to our collective consciousness because some bean counter at the label decides it's not worth pressing?
posted by ritualdevice at 5:37 PM on February 12, 2001

Dreama, I would say that the sense of entitlement exhibited by the "morons" in your example is no greater than the entitlement that the morons at the record companies feel towards my money. The only thing these people ever created in their lives is artificial scarcity. They deprive dedicated creative musicians the opportunity to make aliving doing what they love, while at the same time manufacturing cookie cutter megastar teenagers to sell merchandise to 14 year old girls, and I have no sympathy for them or their lost revenue.
posted by donkeymon at 6:07 PM on February 12, 2001

The technology that allows Napster to exist can't be undone. The record companies should have offered their material at a fair price online a long time ago. Copyright holders should be able to profit from their content, but the record companies haven't kept up with technology. Napster is not only free, it's simply more convenient than buying CDs at a store. If they'd offered the music online at a fair price in the first place, they wouldn't be where they are now.

The same technophobic attitude exists in Hollywood. In a few years, the film industry is going to experience the same crisis the music industry is facing now, if they don't get ready for widespread broadband access to the internet.
posted by Loudmax at 1:20 AM on February 13, 2001

In case anyone's not aware, there are literally dozens of renegade Nap servers in the U.S. and around the world that will continue to run, regardless of the fate of Napster. You can download software from napigator to point your Napster browser to them. Last time I logged in there were more users on the MusicCity server than on the regular Napster.

posted by krebby at 5:29 AM on February 13, 2001

Idiolect...I thought I was the only one who really liked "Billy Don't be a Hero" You ROCK!!! :-)

"And as he started to go she said Billy keep your head low..." sorry all...got a little carried away.

I have been downloading mp3s (for free) for YEARS. Napster just made it easier and more appealing. I will go back to my old ways if I have to. I don't own a CD burner and I rarely download more than 3 songs from any one band or artsist (with the exception of James Horner and the Monsters of the Midday). If I do feel the need to have more than those 3 songs I will go buy the CD. But I just don't see the need to pay in excess of $15 for 3 or less songs. Call it rationalization but where would we be without one or two juicy rationalizations a day??? (No thats not MY line)
posted by Princess Buttercup at 5:59 AM on February 13, 2001

I do call it rationalization. Unless I'm missing something terribly basic, is there any disagreement that Napster users are doing something fundamentally illegal (I don't use Napster, but not out of some noble instinct--I just haven't had a home PC for a while)? I mean, righto, fuck the RIAA and the big corporations and all that, I've heard that, but at bedrock, it's illegal.

We live in a society that we can change--we can vote, we can protest, we can lobby our representatives, etc. But we really can't just break the laws we don't happen to like and not expect backlash, can we? Maybe you're all right, maybe the big record companies suck monster ass, and maybe dhartung is right, and copyright is becoming obsolete, but in the meantime . . . aren't things fairly clear? It's against the law, regardless of the ease of the service, the availability of the product, or the merits of the parties involved. I don't have a lot of pity.
posted by Skot at 8:48 AM on February 13, 2001

Dreama, I would say that the sense of entitlement exhibited by the "morons" in your example is no greater than the entitlement that the morons at the record companies feel towards my money. The only thing these people ever created in their lives is artificial scarcity.

No, they created the product, or rather, the only means of distributing the product so that the inventors' (in this case, songwriters and artists) rights are protected.

And artificial scarcity? The product is available (unless it is now out of print, which is a market-driven decision) and hardly scarce. The only thing that's scarce is the ability to get it without paying for it -- which, last time I checked, is called stealing.
posted by Dreama at 11:03 AM on February 13, 2001

Skot: But we really can't just break the laws we don't happen to like and not expect backlash, can we?

Well, no, but the backlash is kind of the point for some of us.

You're right, it's illegal, it's breaking the law. But what was that stat bandied about recently? 800,000 unique traders constantly? Sure, it could've been 800,001 people with two people trading positions, but we all know that's not the case.

That's a pretty massive number of people who are saying - for whatever reason, greed included - "No, we don't like this law, we don't agree with this law, and we're not going to follow this law."

Whatever your personal stance on Copyright, or Napster, or even just laws in general, think about that for a minute. It's one of the quietest, most peaceful social revelutions to ever go on, and it's all because of this juicy little Internet thing.
posted by cCranium at 11:19 AM on February 13, 2001

And artificial scarcity? The product is available (unless it is now out of print, which is a market-driven decision) and hardly scarce. The only thing that's scarce is the ability to get it without paying for it...

Napster makes the resource (song files) available for free. Laws drive up the price. That's artificial scarcity -- scarcity not due to the absence of a resource (say, delicious oranges after a cold winter) but other factors (say, radio spectrum for which only a few licenses will be issued). Artificial scarcity is exactly what it it. Come on, Dreama, everyone's favorite disgruntled conservative should know these things -- don't take away your ideological brethren's argument against rent control!

This isn't to say that Napster is good; it's just that barring IP law the price of the resource (the delicious soul stylings of "Superfreak", say) would drop to near zero. There's absolutely no natural limit to the resources availability; infinite supply trumps finite demand.
posted by snarkout at 11:41 AM on February 13, 2001

Errr. My typo made that sentence even less intelligible than it would have been otherwise. Please substitute:

"Artificial scarcity" is exactly what it is.

Note that I'm conflating two effects at the end -- barring IP law, the cost of reproducing "Superfreak" drops down to the one-time computational cost of ripping a CD, plus the cost of storage and bandwidth; for people sending the MP3s off later, it's solely storage and bandwidth. That's fractions of a cent for many people, leading to effectively infinite supply, since there aren't any constraints, such as cost of raw materials, on [re]production. Contrast this with pharmaceuticals, which have a non-zero cost of manufacture.

Claims that rent control produces artificial scarcity assume that when the possible return on a rental property through rent drops, supply goes away, which is an added step that isn't really paralleled in electronic reproduction.
posted by snarkout at 1:17 PM on February 13, 2001

" Unless I'm missing something terribly basic, is there any disagreement that Napster users are doing something fundamentally illegal?"

No, they definitely are. The question is whether Napster is doing anything illegal. All they do, after all, is (1) pull a list of MP3 files from people who connect, (2) put the list into a searchable database, and (3) let people search it.
posted by CrayDrygu at 1:34 PM on February 13, 2001

Napster makes the resource (song files) available for free. Laws drive up the price.

Laws don't drive up the price, the companies set the price and the market has sustained those prices over the long haul. If CDs had been introduced at $18 and no one was willing to buy them, the bottom would've fallen out of the market and the price would've dropped with it.

But regardless, artificial scarcity and high prices are still not valid reasons to undertake theft of intellectual property, and there is no valid reason to appropriate the sum of another's creative work illegitimately.

The bottom line is, you steal an artist's music, you're ultimately putting a knife into the back of the very creative force behind the product you so highly covet. To try to justify it by setting forth arguments about prices and scarcity is to engage in half-assed Robin Hoodism - steal from the rich, but instead of giving to the poor, it's only for your own personal gain.

The same community that so harshly condemns stealing web design condones stealing music. The hypocrisy of it overwhelms.
posted by Dreama at 2:19 PM on February 13, 2001

Dreama, you are using some really loaded words.
"stealing web design"--you appropriated someone else's code and passed it off as your own. You plaigarised.
"stealing music" --you make a digital copy of data for your own use, making no money off of it and not misrepresenting the author (unless you really are a thief.)
posted by sonofsamiam at 2:28 PM on February 13, 2001

You're still taking something that you have no right to have and doing with it what you please. Whether it's taking someone else's code and slapping it up on your webserver or taking someone else's music and burning it to a CD, what's the theoretical difference. You are no more entitled to the music than you are to the HTML.
posted by Dreama at 2:58 PM on February 13, 2001

Dreama, you're reading something into what I'm saying that isn't there. I'm not saying that IP laws are bad; I'm not saying that using Napster is a righteous blow against evil record companies. I'm saying that the use of the term "artificial scarcity" is entirely appropriate to this situation.

Laws don't drive up the price, the companies set the price and the market has sustained those prices over the long haul. If CDs had been introduced at $18 and no one was willing to buy them, the bottom would've fallen out of the market and the price would've dropped with it.

Putting aside any arguments about whether the major labels artificially inflate CD prices (through threatened legal action against chains that sell used CDs, illegal price collusion, and other tactics) and whether the price of CDs had something to do with the end of LPs as a mainstream product, you're missing my point entirely. I'll repeat it: atificial scarcity" is exactly what it is.

To try to justify it by setting forth arguments about prices and scarcity is to engage in half-assed Robin Hoodism...

I'm not attempting to justify it. I've never used Napster. (Although I'll gladly stand up and be counted on the side that is against the ever-narrowing definition of fair use.)

It's just that, unlike delicious oranges or shiny VW Beetles or editions of the Gutenberg Bible or Ted Williams rookie cards or any other physical objects one would want to buy, the supply of easily-copied digital media is effectively limitless. People much smarter than me have thought about the meaning of this in terms of art. In terms of commerce, if nothing else I think we can agree that artificial scarcity is something qualitatively different than the scarcity of real goods. That's why so few people regard it as theft, I think -- you're not stealing a "thing" (an orange, a baseball card, a car), you're stealing a copyright holder's right to be compensanted for his, her, or its intellectual property.
posted by snarkout at 3:02 PM on February 13, 2001

And lest I veer further into a discussion on postmodernism and the post-industrial economy, CrayDrygu has it exactly right -- the question isn't whether people using Napster are stealing; it's whether what is, in essence, a company providing an indexing service is on the hook for the illegal purposes to which said index is put.
posted by snarkout at 3:11 PM on February 13, 2001

OK, I do this stuff for a living, so maybe I can clarify a few things.

First of all, copyright is a constitutionally based property right, and just as you have a right to stop people from walking on your lawn even if you're doing it just to be a jerk, a copyright owner has a right to stop people from making copies of her work in derogation of her exclusive right of reproduction. The way the Copyright Act is written, the Copyright owner has some pretty strong and unequivocal rights (granted in 17 U.S.C. 106, if you're playing along at home). These rights include the right "to do and to authorize" reproduction in copies or phonorecords (both being defined terms of art), the right to perform the work publicly (also a defined term of art that includes broadcasting even if it is viewed/listened to in the comfort of your own home) and the right to distribute "by sale or transfer of ownership or by rental lease or lending." But Congress also wanted to balance the author's exclusive rights to exploit her work with society's need to benefit from those works, and so wrote in the Fair Use doctrine (17 U.S.C. 107) and some other exceptions to those exclusive rights. So, if you make a copy of a song without permission, you are "an infringer" under the statute. As a defense, however, you can assert that your copy was fair use.

The Ninth Circuit got a lot of things wrong, but there is one thing they got very right -- there is a big difference with home taping from a public performance for time shifting purposes that was found to be fair use in the famous Betamax case, and what Napster users do. Napster users are not only making a copy for home use, they are DISTRIBUTING copies on a large scale, and as such the number of unauthorized copies out there are multiplying exponentially. This is what makes it different from home taping. It's not "sharing" -- when you "share" a book, you pass a physical copy of the book to your friend, you don't make a copy of it. Using Napster, thousands of people are making copies and distributing copies in derogation of the owner's copyrights. Even if the act of making a single copy for home use could be considered fair use, the distribution part is what sinks the fair use case.

And finally, for ritualdevice, I want to clarify that the Court was probably right about computers not qualifying as a "digital audio recording device" under the Audio Home Recording Act of 1992 (AHRA). Every time Congress tries to "deal with new technology" by creating new sections of the copyright law, they f*** up. While the majority of the original Copyright Act of 1976 is elegant and broadly written to encompass a broad range of factual scenarios, AHRA and the Digital Millennium Copyright Act of 1998 (DMCA) are highly (overly?) negotiated provisions that sound more like regulatory minutia. When you make law that way, you end up with things like AHRA, which builds upon nested defined terms in such a dizzying way that even experience copyright lawyers feel their heads spin. Be glad that computers are not a "digital audio recording devices" -- such devices are required to incorporate copying controls, and the manufacturers have to pay a royalty (which supposedly eventually wends its way to the copyright owner) as calculated by a complicated formula that takes several pages to explain.
posted by IPLawyer at 12:11 PM on February 16, 2001

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