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I've carefully researched this issue for you and have the answers.
I conducted an Infotrac search of articles using the search terms:
Napster copyright.
These are the citations I found:
Bertelsmann set to acquire Napster assets: copyright-infringement
suits frozen as file-swapping service files for bankruptcy protection.
Brian Garrity.
Billboard June 15, 2002 v114 i24 p3(1) Bus.Coll.: 140P3867.
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Mark Court postpones decision in Napster copyright case: Third-party
rep might investigate further. (News). (Brief Article) Tamara Conniff.
Hollywood Reporter Oct 11, 2001 v370 i21 p4(2)
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Mark Creative protection. (Copyright). (Napster and others)(Brief
Article)
Canada and the World Backgrounder Oct 2001 v67 i2 pS27(3)
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Mark A Delicate Balance. (Napster and copyright law)(Brief Article)
JANE KIRTLEY.
American Journalism Review April 2001 v23 i3 p66
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Mark Napster's lessons for your Web site. (findings in the Napster
Inc. copyright infringement case)(Brief Article)(Editorial) ROBERT
CARSON GODBEY.
Hawaii Business April 2001 v46 i10 p27 Bus.Coll.: 131W0430.
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Mark For copyright holders, Napster maybe only the start. EMILY
REDMOND.
The Business Journal Serving Metropolitan Kansas City March 23,
2001 v19 i28 p8 Bus.Coll.: 136S0333.
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Mark Internet Content Challenges Copyright Limits. (Napster, the
most familiar example of the digital copyright conundrum, is just the
tip of the iceberg.)(Government Activity) Mary Mosquera.
Planet IT March 4, 2001 pNA
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Mark Internet Content Challenges Copyright Limits. (Napster, the
most familiar example of the digital copyright conundrum, is just the
tip of the iceberg.)(Industry Trend or Event) Mary Mosquera.
TechWeb March 3, 2001 pNA
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Mark Song, Sung Blue. (Napster copyright ruling)(Company Business
and Marketing) Joshua Piven.
Computer Technology Review March 2001 v21 i3 p6
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Mark This and that. (Nortel Networks Corp. securities; Trilogy
Retail Enerprises L.P. acquires Chapters Inc.; Onex Corp. plans
acquisition Cineplex Odeon Corp.; Napster copyright case; Landry
Bernard)(Brief Article)
Ivey Business Journal March 2001 v65 i4 p82
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Mark Playing Fair With Copyright: After Napster, the entertainment
giants might use technology to stop even legal copying. (Random
Access)(Science & Technology)(Brief Article) Steven Levy.
Newsweek Feb 26, 2001 p60 Mag.Coll.: 106J0837. Bus.Coll.:
130W0831.
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Mark Sounds of silence. (results of the ruling in the Napster
copyright case)(Brief Article)
Variety Feb 26, 2001 v382 i2 pS7
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Mark BRIDGE TOP NEWS NOW: Mediator named in Napster copyright case.
Futures World News Feb 22, 2001 p1008050r8218
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Mark NAPSTER CHILL THRILLS PIC BIZ. (possible injunction against
Napster for copyright infringement bodes well for film industry)(Brief
Article) TIM SWANSON, PAMELA McCLINTOCK.
Variety Feb 19, 2001 v382 i1 p35
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Mark Court: Napster infringes copyright, can continue operating.
(Company Business and Marketing) Sam Costello.
Network World Feb 12, 2001 pNA
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Mark TVT Records Drops Napster Copyright Suit. (Company Business and
Marketing) Martin Stone.
Newsbytes Jan 25, 2001 pNWSB01025007
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Mark Napster files copyright suit. (Brief Article)
San Francisco Business Times Jan 5, 2001 v15 i22 p7 Bus.Coll.:
131P3811.
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Mark Napster Files Copyright Suit. (Company Business and
Marketing)(Brief Article) Ian Stokell.
Newsbytes Jan 2, 2001 pNWSB0100200C
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Mark NAPSTER Copyright Killer or Distribution Hero? Chris Sherman.
Online Nov 2000 v24 i6 p16 Mag.Coll.: 105H3235. Bus.Coll.:
130U1254.
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Mark Napster's Offspring: Peer-to-peer upstarts try to fulfill a
pioneer's promise. (THE VALLEY)(Science & Technology)(Napster's
copyright case may affect other internet businesses)(Brief Article)
Brad Stone.
Newsweek Oct 16, 2000 p58 Mag.Coll.: 105C0869. Bus.Coll.:
129T1563.
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Mark Aimster, Cousin of Napster, Takes Root. (But creators say the
new file transfer program won't raise the copyright issues Napster
has.)(Company Business and Marketing) Charles Bermant.
TechWeb Sept 23, 2000 pNA
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Mark When Does Copying Become Illegal Use? -- Napster copyright
battle may impact text, video, software protection at other content
sites. (Industry Trend or Event) Ted Kemp.
InternetWeek August 14, 2000 p16
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Mark The music industry - Rewired for sound. (Napster copyright
case)(Brief Article)
The Economist (US) August 5, 2000 v356 i8182 p59
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Mark MP3.com unveils pay-for-play as Napster faces copyright rap.
(Company Business and Marketing)
PC Direct (UK) July 2000 p41
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Below are the articles:
"Billboard, June 15, 2002 v114 i24 p3(1)
Bertelsmann set to acquire Napster assets: copyright-infringement
suits frozen as file-swapping service files for bankruptcy protection.
Brian Garrity.
Full Text: COPYRIGHT 2002 VNU Business Media NEW YORK--Napster's
filing for Chapter 11 bankruptcy protection--a move that was expected
(Billboard, May 25)--sets the stage for Bertelsmann to acquire the
file-swapping service's assets and freezes the music industry's
copyright-infringement litigation against the company.
Those suing Napster may now seek settlement through the bankruptcy
proceedings. Meanwhile, Bertelsmann--which, according to documents
filed with a U.S. Bankruptcy Court in Delaware, has sunk more than $91
million in loans into the swappery--hopes to use the Redwood City,
Calif.-based company's technology, and presumably brand name, to
launch a for-pay digital music service of its own. That is, provided
another company doesn't outbid the German conglomerate for the assets.
No other potential buyers have yet stepped forward.
Napster CEO Konrad Hilbers said in a statement, "The Chapter 11
process will allow the company to move forward with a talented team
and continue on the path toward launch, while pursuing a plan to make
payments to our creditors."
According to papers filed with the Delaware court, the company claims
$7.9 million in assets and $101 million in debt as of April 30.
Napster is said to be seeking $5.1 million in debtor-in-possession
(DIP) financing from Bertelsmann, which last month agreed to a buyout
deal with the company that includes $8 million toward the settling of
outstanding debts and the assumption of liabilities (Billboard
Bulletin, May 17). Finalization of the Bertelsmann acquisition pact
requires court approval as part of the bankruptcy proceedings.
Napster, which currently has a staff of 18, says it plans to rehire up
to 28 additional employees once it receives DIP funding.
Bertelsmann is the company's largest secured creditor. Napster's top
unsecured creditors are the U.K.'s Assn. Of Independent Music, at $3.
79 million, and the law firm of Napster attorney David Boies--Boies,
Schiller & Flexner--at $2.14 million.
Reaction to the bankruptcy filing from those suing Napster for
copyright infringement--a crusade that has gone on for more than two
years--has been quiet. In a statement, Recording Industry Assn. of
America president Cary Sherman said, "We look forward to Napster
becoming a legitimate online music service in which artists and record
companies are fairly compensated for the use of their works."
However, launching and succeeding with a legitimate service is still
expected to be a challenge for Napster, even inside the fold of
Bertelsmann. Among the hurdles facing the company: Napster has yet to
strike content licensing agreements with the major labels; even with
major-label content, any legitimate version of the service will have
substantially less music than Napster used to have as an unregulated
peer-to-peer application; and it, like all other for-pay services,
will have to compete with free Napster clones like Kazaa and
Audiogalaxy. "
"Hollywood Reporter, Oct 11, 2001 v370 i21 p4(2)
Court postpones decision in Napster copyright case: Third-party rep
might investigate further. (News). (Brief Article) Tamara Conniff.
Full Text: COPYRIGHT 2001 VNU Business Media In ongoing Napster
litigation, a federal judge opted Wednesday not to issue an immediate
ruling on whether the file-sharing service is in violation of
copyright law.
Instead, U.S. District Judge Marilyn Hall Patel said a third-party
representative might be appointed to further investigate issues of
ownership, misuse and the willfulness of Napster's infringement on the
copyrights of recordings belonging to the major label groups.
Patel also said that Napster's representatives and the Recording
Industry Association of America are welcome to come up with a mutual
suggestion within 10 days on who the third-party representative should
be.
The decision can be viewed as a small win for Napster, which has
argued against a summary judgment on this issue for months.
"With the digital music marketplace so early in its development and
tens of millions of consumers wanting to access their music over the
Internet, it's important that the issues at stake here receive a full
airing," Napster general counsel Jonathan Schwartz said.
Napster has been actively seeking to ink licensing deals with the
major labels, including Sony, EMI, Universal Music Group, Warner Music
Group as well as their strategic partner, BMG Enterntainment. So far,
none are willing to sign until Napster proves itself legally operable.
The label groups are also focusing on their own online initiatives
MusicNet and pressplay and are not jumping to license to Napster. "
"Canada and the World Backgrounder, Oct 2001 v67 i2 pS27(3)
Creative protection. (Copyright). (Napster and others)(Brief Article)
Full Text: COPYRIGHT 2001 Canada & the World
Perhaps the thorniest legal issue of all for the Internet is that of
copyright, which forbids unauthorized duplication of another's
original work. The mere act of viewing a document on the Internet,
however, offends against this principle because the document is
literally copied to the viewer's screen. If the document is then
copied onto a storage device such as a floppy disk, the viewer may
alter the document and republish it in a form that may not be readily
distinguishable from the work of the original author. Some writers and
artists have greeted this situation as a new impetus for collective
creativity, but for defenders of intellectual property rights it is a
problem of enormous scale. Some have suggested that the very notion of
copyright, which was unknown before the invention of printing, may not
survive the advent of cyberspace.
But, if the creators of books, movies, music, etc. don't receive
payment for their work where is the incentive to create these things
in the first place? Napster turned the music world upside down. Using
a technology called MP3, Internet users were able to swap their
favourite music tracks. Then, with rewritable CD-ROMs and CD burners,
they could transfer those files onto CDs to be played on their own
sound systems. This was a technology that suited perfectly the
rebellious culture of the Internet. You could copy the one good track
on a CD for free. The alternative was to buy the whole CD for fifteen
or twenty bucks and wade through all the filler songs the giant record
labels packed onto their disks.
It hardly occurred to anyone swapping music on Napster that they were
breaking the law. But, they were. The copyright laws protect the
creators of music, books, movies, even articles such as this one from
unauthorized copying.
But, some of the recording artists liked what was happening on the
Internet. Here's Courtney Love in a speech in New York in 2000:
"Record companies stand between artists and their fans. We signed
terrible deals with them because they controlled access to the public.
But, in a world of total connectivity record companies lose that
control ... Artists can sell CDs directly to fans. We can make direct
deals with thousands of other Websites and promote our music to
millions of people that old record companies never touch."
The big record companies could not let Napster carry on; it was
costing them millions. They got together and sued the company for
copyright infringement. (Interestingly, at the same time as it was
suing Napster, the German media giant Bertelsmann -- owner of the BMG
label -- was negotiating to buy a half share in Napster). The big guys
won. Effectively, Napster was shut down in the middle of 2001 by
promising to post only copyright-free material, of which there was
almost none. In February 2001, fans downloaded 2.8 billion songs
through Napster; by May this had dropped to 360 million. (Again, while
Napster was being shut down, Vivendi Universal Music paid $372 million
U.S. to buy MP3.com.)
People can still download their favourite music on the Internet --
but, now they'll have to pay for it. Two music subscription services
have been started by the industry giants -- MusicNet and Duet.
Or, fans can find other file-swapping sites that pop up all the time.
By the time you read this Audiogalaxy, KaZaA, Gnutella, BearShare, and
Morpheus may have been shut down. But, like dandelions in the spring,
new file-sharing sites will sprout to replace the ones that are
killed.
There is also the potential for artists to by-pass the big record
companies and sell direct to fans. The financial barriers to entry
into this means of marketing are very low; almost any garage band can
now put its music on the Net for others to hear and, perhaps, even pay
for.
The publishers of books have been watching the Napster story very
closely. High-speed Broadband connections will enable Internet users
to download books in the blink of an eye. Four hundred thousand people
did just that in 24 hours when horror writer Stephen King posted a
short novel on the Internet in March 2000. But, Mr. King's book was
available free of charge and the novelty of being able to download a
book attracted many enthusiasts.
The people who print and sell books are not sure electronic publishing
would work commercially. That feeling was reinforced at the end of
2000. The same Stephen King who made such a splash in March was trying
to sell a new novel over the Internet. Readers could buy the book for
a dollar a chapter, but so few were willing to pony up the money that
Mr. King abandoned the plan.
Consumers don't like reading books on computers, and it's unlikely
people will want to print off hundreds of pages and carry them around
in a plastic bag. Sales of hand-held devices into which books can be
downloaded from the Net have been disappointing. However, technologies
such as CoolType and ClearType are improving the readability of small
screens. It seems to be only a matter of time before technology and
the preferences of readers match up and e-books take off.
So, the potential for swapping electronic books in the same way that
people exchanged music is looming. But, looming also is the ability of
writers to sell their work directly to readers over the Internet.
There would be virtually no production costs such as printing and
binding, and no percentage going to publishers and booksellers; the
author will get every penny of the selling price. He or she might get
ripped off for the illegal copies made, but dealing directly with
readers might be more appealing than going through a publisher. And,
anybody could get published -- not just the established writers that
big, commercial media companies tend to concentrate on.
FACT FILE
Five companies -- EMI, Sony Music, Warner Music, Vivendi Universal
Music, and BMG -- control more than three quarters of the world's
record market.
The Canadian Copyright Act became law in 1924.
websites
Copyright Board Canada http://www.cb-cda.gc.ca/
Media Awareness Network - http:// www.media-awareness.ca/eng/med/
class/edissue/copyrigt.htm
Ten Copyright Myths Explained http://www.templetons.com/brad/
copymyths.html
"
American Journalism Review, April 2001 v23 i3 p66
A Delicate Balance. (Napster and copyright law)(Brief Article) JANE
KIRTLEY.
Full Text: COPYRIGHT 2001 University of Maryland
The Napster ruling underscores the importance of protecting both the
free flow of ideas and copyright.
Go on, admit it.
You, or someone you love--perhaps that teenager upstairs--has
downloaded digital copies of copyrighted music from the Internet using
the Napster system. And what a great system it is, allowing you to
search for MP3 music files provided by other registered Napster
subscribers, and to transfer and copy them to and from your own
computer for free.
Maybe you've felt a little guilty about doing it. Or perhaps, like the
millions of users who have visited Napster's Web site since its
inception in 1999, you believed that you were somehow striking a blow
for free expression or, at the very least, that what you were doing is
protected by the "fair use" exception to the federal copyright law.
If so, the 9th U.S. Circuit Court of Appeals disabused you of that in
February. The three-judge panel ruled unanimously that Napster users
who download files containing copyrighted music violate the record
industry's exclusive right to reproduce those musical works. Users who
upload copyrighted file names to Napster's search index infringe on
the industry's exclusive distribution rights. This means that Napster
can be stopped from helping with copyright infringement.
But doesn't the First Amendment trump the record industry's rights to
the music? In a word, no. Copyright isn't merely codified in federal
statutes--it is enshrined in the Constitution. The rationale is that
creators and owners of artistic works must be able to control their
distribution and sale. Otherwise, they will have no incentive to
produce them.
Fair use is an exception to that rule, but the court here found that
what most of Napster's subscribers were doing wasn't fair use.
Instead, the court said, "Napster users get for free something they
would ordinarily have to buy." Napster "materially contributed" to
this practice by providing the site and software to permit that
infringement. As Circuit Judge Robert R. Beezer wrote, "Turning a
blind eye to detectable acts of infringement for the sake of profit
gives rise to liability."
But there's a loophole in that ruling, and it lies in the word
"detectable." The panel recognized that Napster cannot be expected to
police the files stored on the computers of its individual
subscribers, nor can it be forced to disable access to infringing
files if it has not first received adequate notice from the rightful
copyright owner.
That aspect of the 9th Circuit's ruling is similar to one issued by
the 4th U.S. Circuit Court of Appeals just a week earlier. That case
involved a copyright infringement claim brought by ALS Scan, a
producer and marketer of "adult" photographs, against RemarQ
Communities Inc., an Internet service provider. RemarQ had refused to
drop two newsgroups that, ALS Scan claimed, illegally posted its
copyrighted photographs.
A federal district court in Baltimore dismissed the suit, finding that
ALS Scan had failed to provide RemarQ with sufficient descriptions of
the infringing material as reouired by the Digital Millennium
Copyright Act, the federal law enacted in 1998 to deal with the unique
copyright issues posed by the Internet. But the 4th Circuit reversed,
finding that ALS Scan's notices were detailed enough to alert RemarQ
to the problem. It sent the case back to the district court for trial.
The 9th Circuit also sent the Napster case back, to U.S. District
Judge Marilyn Patel, directing her to tinker with the preliminary
injunction that she originally issued last July. In early March, Patel
placed the burden of notification on the record companies, taking into
account the possibility that Napster can be used for non-infringing
purposes. "The mere existence of the Napster system," the panel said,
is not in and of itself a violation of anyone's copyright.
Although Napster is working on a settlement, the immediate reaction in
the music industry was that the free service would have to shut down.
They claim that developing technology to screen out copyrighted works
will be difficult, if not impossible.
The implications of this ruling go far beyond Napster. The challenge
will be to strike the delicate balance between encouraging the
development of technology that facilitates the free exchange of ideas,
and protecting copyright holders' exclusive rights in their creative
material. If the courts get it wrong, Internet service providers will
be tempted to deny access to systems like Napster, and even to
newsgroups like the ones carried by RemarQ, for fear that they might
be found liable of copyright infringement themselves.
Jane Kirtley is the Silha Professor of Media Ethics and Law at the
University of Minnesota's School of Journalism and Mass
Communications."
"Hawaii Business, April 2001 v46 i10 p27
Napster's lessons for your Web site. (findings in the Napster Inc.
copyright infringement case)(Brief Article)(Editorial) ROBERT CARSON
GODBEY.
Full Text: COPYRIGHT 2001 Hawaii Business Publishing Co. FACING THE
MUSIC ROBERT CARSON GODBEY
In one of the most closely watched copyright cases in recent memory,
the Ninth Circuit Court of Appeals generally affirmed a lower court
preliminary injunction against Napster. Napster -- for those of you
without teenagers in the house -- facilitated the transmission of
music over the Internet. Napster didn't actually copy the music, it
merely allowed "peer-to-peer" sharing of files. In other words, if I
had music on my computer that you wanted to copy, Napster would help
you find me and download the music files from my computer to yours.
The lower court's preliminary injunction prohibited Napster from
engaging in, or facilitating others in, "copying, downloading,
uploading, transmitting, or distributing" copyrighted music.
The court had no trouble in finding that a number of Napster users
were violating the copyright law -- even Napster acknowledged that
downloading and uploading music from one user's computer to another
was a "copying" of that music. Napster defended by arguing that this
was a "fair use" of the copyrighted music. The court rejected this
argument, observing that wholesale copying of entire songs cut against
the fair use argument, as did the adverse effect of Napster on the
market for the music that was copied.
Having concluded that the Napster users did not have a fair use
defense to copyright infringement, the court considered whether
Napster was liable for the infringement of its users under two
doctrines of copyright law: contributory copyright infringement and
vicarious copyright infringement.
Traditionally, if you know of an infringement and materially
contribute to the infringing conduct of another, you may be liable as
a "contributory" infringer. The court held that if a computer system
operator learns of specific infringing material on his system and
fails to purge it, the operator knows of the direct infringement. The
court concluded the record supported a finding that Napster had such
actual knowledge. The court also found that Napster provided the site
and facilities for the direct infringement, and thus materially
contributed to the infringing activity. Accordingly, the court found
Napster engaged in contributory infringement.
Vicarious infringement occurs where a defendant has the right and
ability to supervise the infringing activity and a direct financial
interest in the activity. Although it usually arises in an employment
context, it is not limited to that. The court found that Napster had a
direct financial benefit from the infringing activity because its
future revenues were linked to its userbase, and its userbase grew
from users who wanted to copy music. The court also found that Napster
had the right and ability to police its system, and thus the ability
to "supervise" the infringing activity. Accordingly, the court found
Napster vicariously liable for its users' copyright infringement.
The court also considered and rejected a handful of defenses raised by
Napster. The most interesting of these to me was the safe harbor
provisions of the Digital Millennium Copyright Act (DMCA). The DMCA
provides immunity from contributory and vicarious infringement for
qualified Internet service providers. The court left this defense to
be more fully developed at trial, but noted that there was a
significant question as to whether Napster is an Internet service
provider as defined in the DMCA.
The message of the Napster decision for anyone running a Web site is
clear: even if you do not directly violate the copyright law, you may
still be liable for contributory or vicarious infringement. Be
careful.
Bob Godbey is a partner in the law firm of Jackson Godbey Griffiths in
Honolulu. A graduate of the Harvard Law School, he has degrees in
electrical engineering and math and practices in the area of
Technology and Intellectual Property Law. "
"The Business Journal Serving Metropolitan Kansas City, March 23, 2001
v19 i28 p8
For copyright holders, Napster maybe only the start. EMILY REDMOND.
Full Text: COPYRIGHT 2001 Kansas City Business Journal, Inc.
The Napster case may not end businesses' concerns about unauthorized
distribution of their copyrighted material on the Internet.
Peer-to-peer trading may prove to be a bigger, more difficult to
police concern, and it's gaining momentum as the next big exchange.
medium on the Web.
The Napster model generates and spreads content from a central point
or server. Peer-to-peer exchanges skip the server and connect
individual computers directly to one another. Advances in peer-to-peer
technology and the expansion of intellectual property issues could
have a much bigger effect on copyright holders than Napster.
"Every computer becomes a server, and every person with, a computer
becomes a content provider," said Blaine Kimrey, a lawyer with Lathrop
& Gage LC who focuses on Internet, media and entertainment law.
In the Napster case, it was relatively easy for the large record
companies to go after Napster because a clearly identifiable entity
facilitated the exchange, Kimrey said. Large recording companies,
contended that the Napster service contributed to the violation of
copyrighted material by its members.
"But with peer-to-peer, there is not an intermediary, so they would
have to go after the individual users sitting in their home offices or
their kids' rooms trading files, which is probably impossible to
stop," he said.
Penny Slicer, co-chairwoman of the intellectual property group at
Stinson Mag & Fizzell, said she doesn't know of any Napster-like sites
that enable people to' share novels or other intellectual property, so
she doesn't foresee any other industry wide lawsuits to shut down
distribution of those copyrighted materials.
Individuals trading content' are relatively safe, with companies
cracking down mostly on random, individual cases, experts said. The
more likely targets are individuals who use copyrighted material on
the Internet for commercial purposes, not little Billy trading
cartoons with a friend.
For now, it's easier to trade music files than larger movie or book
files. But as technology strengthens, such as improvements to DVDs and
file-compression, the market will expand, and it will be easier to
trade movies, music videos, television programs and other copyrighted
materials among peers, said Jerry Wolf, a partner at Sonnenschein Nath
& Rosenthal.
Many companies object to the sites or individuals who threaten their
sales and marketing efforts by making the content available for free
to consumers 'on the Internet, Wolf said.
But Jeff Peterson, president of Lawrence-based Noisome Records, is all
for having the music his company produces distributed through the
Internet.
"As a small business owner, it means more exposure for our bands," he
said. "I don't see a problem sharing a digital file. It's the same
thing as playing a song in the car for' other people."
Many companies have a staff of "Internet police" who search the Web
for sites that post a company's copyrighted materials without
permission.
Individuals found allegedly distributing or using copy righted
materials often are sent a letter warning them to stop or face a
possible civil suit. In extreme cases, a person who willfully uses
copyrighted materials could face criminal charges Kimrey said.
Sherrie Stuckey, director of sales and marketing for. Andrews McMeel
Publishing of Kansas City, said the company has attempted to avoid
copyright issues by sending its materials free to people who request
products on its Web site. Advertising is sold to offset the cost of
distribution and copyright.
Because a user gets it free, the person then is able to forward it to
other people -- a valuable marketing tool for the company because more
people see its products, Stuckey said. "
"Planet IT, March 4, 2001 pNA
Internet Content Challenges Copyright Limits. (Napster, the most
familiar example of the digital copyright conundrum, is just the tip
of the iceberg.)(Government Activity) Mary Mosquera.
Full Text: COPYRIGHT 2001 CMP Media, Inc. WASHINGTON-The Internet
poses greater challenges than current copyright laws can handle-and
the federal government is set to enter the fray.
Federal regulators, attorneys, investment analysts, and industry
executives gathered this week to try to unravel complex digital
copyright issues at a conference on the politics of the new Internet
marketplace.
"We are at a crossroads of how consumers are going to receive recorded
works," said William Roberts, a senior attorney at the U.S. Copyright
Office.
Under law, the holder of copyright material has exclusive control over
public performance, reproduction, and distribution of the written or
recorded work, Roberts said at the conference, sponsored by the
Precursor Group, an independent research organization in Washington.
The same day the digital rights experts assembled in the nation's
capital, Napster Inc. attorneys were back in court in San Francisco,
arguing over what has become the most celebrated example of the
dilemma.
Napster's lawyers told a federal court Friday it was developing new
software to filter out copyrighted material.
U.S. District Judge Marilyn Hall Patel is drafting an injunction,
which many believe will unplug the hugely popular song-swapping site.
Meanwhile, Napster said it would begin blocking copyrighted material
this weekend.
If the recording industry and Napster can't forge a settlement on how
to treat music downloaded from the Internet, the recording industry
will ask the copyright office to issue more compulsory licenses or
exclusive rights over the disputed music, Roberts said.
The Recording Industry Association of America, the industry group that
sued Napster, has requested the government examine whether copyright
laws cover downloading of music from the Internet, he said.
The U.S. Copyright Office will release a notice of inquiry next week
investigating the limits of present compulsory licenses or whether
Congress should pursue adjustment of royalty licenses for downloadable
music, Roberts said.
The government will accept comments for 45 days about whether
regulators should propose new rules, he said.
The Internet has made adhering to copyright of recorded works
cumbersome and complex, said Billy Pitts, executive vice president of
MP3.com (stock: MPPP), an Internet subscription music service.
MP3.com, San Diego, was shut down temporarily because a judge found it
violated record company copyrights. But the Internet music service
settled with major record labels and relaunched with free and
subscription versions. Its My MP3.com lets people store and access
music online.
"The current copyright apparatus cannot deal with the aggregate copies
the Internet demands," Pitts said. "It's just getting too big and
complicated. We're all going to have to get together and figure this
out."
Enter the Digital Millennium Copyright Act. Passed in 1998, it set up
a framework for copyright of digitized content, chiefly written
materials, recordings, and movies.
"When we worked on DMCA, we wanted to seal all the exits," Pitts said,
meaning no copyright infringement. At the time, he was working for
Walt Disney Co.
"We went a little too far," he said.
"We need to start the debate in Congress on how to differentiate the
rights of the consumer from the rights of the copyright holder," Pitts
said.
The copyright act needs some tweaking to accommodate how users will
receive recorded works in the future, he said.
And while policy makers tinker with rules and regulations, the digital
rights world grows more complex every day. Newer, stronger consumer
delivery systems will be Internet-connected, interactive,
characterized by voice recognition, music streaming and Web casting,
Pitts said.
2001 CMP Media Inc. "
"TechWeb, March 3, 2001 pNA
Internet Content Challenges Copyright Limits. (Napster, the most
familiar example of the digital copyright conundrum, is just the tip
of the iceberg.)(Industry Trend or Event) Mary Mosquera.
Full Text: COPYRIGHT 2001 CMP Media, Inc. WASHINGTON The Internet
poses greater challenges than current copyright laws can handle and
the federal government is set to enter the fray.
Federal regulators, attorneys, investment analysts, and industry
executives gathered this week to try to unravel complex digital
copyright issues at a conference on the politics of the new Internet
marketplace.
"We are at a crossroads of how consumers are going to receive recorded
works," said William Roberts, a senior attorney at the U.S. Copyright
Office.
Under law, the holder of copyright material has exclusive control over
public performance, reproduction, and distribution of the written or
recorded work, Roberts said at the conference, sponsored by the
Precursor Group, an independent research organization in Washington.
The same day the digital rights experts assembled in the nation's
capital, Napster Inc. attorneys were back in court in San Francisco,
arguing over what has become the most celebrated example of the
dilemma.
Napster's lawyers told a federal court Friday it was developing new
software to filter out copyrighted material.
U.S. District Judge Marilyn Hall Patel is drafting an injunction,
which many believe will unplug the hugely popular song-swapping site.
Meanwhile, Napster said it would begin blocking copyrighted material
this weekend.
If the recording industry and Napster can't forge a settlement on how
to treat music downloaded from the Internet, the recording industry
will ask the copyright office to issue more compulsory licenses or
exclusive rights over the disputed music, Roberts said.
The Recording Industry Association of America, the industry group that
sued Napster, has requested the government examine whether copyright
laws cover downloading of music from the Internet, he said.
The U.S. Copyright Office will release a notice of inquiry next week
investigating the limits of present compulsory licenses or whether
Congress should pursue adjustment of royalty licenses for downloadable
music, Roberts said.
The government will accept comments for 45 days about whether
regulators should propose new rules, he said.
The Internet has made adhering to copyright of recorded works
cumbersome and complex, said Billy Pitts, executive vice president of
MP3.com (stock: MPPP), an Internet subscription music service.
MP3.com, San Diego, was shut down temporarily because a judge found it
violated record company copyrights. But the Internet music service
settled with major record labels and relaunched with free and
subscription versions. Its My MP3.com lets people store and access
music online.
"The current copyright apparatus cannot deal with the aggregate copies
the Internet demands," Pitts said. "It's just getting too big and
complicated. We're all going to have to get together and figure this
out."
Enter the Digital Millennium Copyright Act. Passed in 1998, it set up
a framework for copyright of digitized content, chiefly written
materials, recordings, and movies.
"When we worked on DMCA, we wanted to seal all the exits," Pitts said,
meaning no copyright infringement. At the time, he was working for
Walt Disney Co.
"We went a little too far," he said.
"We need to start the debate in Congress on how to differentiate the
rights of the consumer from the rights of the copyright holder," Pitts
said.
The copyright act needs some tweaking to accommodate how users will
receive recorded works in the future, he said.
And while policy makers tinker with rules and regulations, the digital
rights world grows more complex every day. Newer, stronger consumer
delivery systems will be Internet-connected, interactive,
characterized by voice recognition, music streaming and Web casting,
Pitts said.
2001 CMP Media Inc. "
"Computer Technology Review, March 2001 v21 i3 p6
Song, Sung Blue. (Napster copyright ruling)(Company Business and
Marketing) Joshua Piven.
Full Text: COPYRIGHT 2001 West World Productions, Inc.
Napster ruling upholds copyrights, blocks server-based song swapping.
In an expected but nonetheless crucial ruling in the battle over
copyright law on the Internet, the 9th Circuit Court of Appeals in Los
Angeles has determined that Napster.com routinely violates copyright
laws and must significantly change its technology, or cease
operations.
The ruling is a huge victory for the Recording Industry Association of
America (RIAA), for the record companies it represents, and for many
artists (Metallica most vocally) who claimed that Napster pirates
their music and prevents them from earning royalties. It is a major
defeat for Napster and will likely force the company, which became the
fastest growing Web site in history, into bankruptcy.
"We are disappointed in today's ruling," Napster CEO Hank Barry said
in a statement. "Under this decision Napster could be shut down--even
before a trial on the merits. The Court today ruled on the basis of
what it recognized was an incomplete record before it. We look forward
to getting more facts into the record. While we respect the Court's
decision, we believe, contrary to the Court's ruling today, that
Napster users are not copyright infringers and we will pursue every
legal avenue to keep Napster operating."
The ruling said that Napster must regularly search its site for
copyrighted material and remove it, though recording companies are
required to instruct Napster as to which copyrights are being
violated. While the ruling will likely force the company to create an
industry-approved version of its site, Napster has been pursuing such
a solution for some time, even though the financial viability of such
a site model is unproven. Company founder Shawn Fanning reiterated
that Napster would continue to pursue distribution agreements with
music publishers and create a service that makes royalty payments to
musicians.
The real effects of the ruling on the Web's music swapping community
are a bit less clear. Server-based music swapping sites will likely be
less commercially viable and visible, and be relegated to underground
and Usenet status. But sites like Aimster and Gnutella that bypass
central servers for peer-based file swapping are more difficult to
police and, assuming they are able to stay in business, will probably
live on. Indeed, P2P networking has already moved into the mainstream
with technology from companies like Groove Networks. Court ruling or
not, peer-to-peer networking technology is out of the bag, and only
strong encryption built into music and video files is likely to
prevent users from taking advantage of it. "
"Ivey Business Journal, March 2001 v65 i4 p82
This and that. (Nortel Networks Corp. securities; Trilogy Retail
Enerprises L.P. acquires Chapters Inc.; Onex Corp. plans acquisition
Cineplex Odeon Corp.; Napster copyright case; Landry Bernard)(Brief
Article)
Full Text: COPYRIGHT 2001 University of Western Ontario As of this
writing, Nortel Networks' stock has dropped from a high of $124 in
October to a low of $31 on the news of diminished expectations for the
coming year. Last October, John Roth was hailed as CEO of the year by
the National Post Business magazine. Now his "credibility is in
tatters" according to the front page of The Globe and Mail.
It's interesting. In October, all of the pundits thought that Nortel's
stock was just going to keep going up and up. There was nothing to
stop it. I guess they forgot about such things as a natural business
cycle or, as my father once taught me, "If it goes up, it will come
down." Nortel is still a strong, well-run company with projected
growth of 10-15 percent in the coming year. It is well positioned to
continue its growth and domination of its markets. Maybe all of those
experts who pushed the stock into the stratosphere last year should
keep that in mind before they sell the stock short for not living up
to their expectations.
Well, Gerry Schwartz finally has his consumer company. In our
interview in July, Mr. Schwartz stated that he wanted a known Canadian
consumer company. It bothered him that most Canadians didn't know
Gerry Schwartz or Onex. Now they do.
Actually it looks like he will have two consumer companies. Trilogy
Investments (controlled by Schwartz and his wife, Heather Reisman) now
has control of Chapters after a long and, at times, bitter takeover
battle. Although there are some issues still to be resolved, most
observers agree that consolidation of the book retailing industry in
Canada was long overdue. Even book publishers are quite happy with the
outcome.
Onex is also set to take over the Cineplex Odeon chain of movie
theatres. Now Gerry and Heather can show you a movie or sell you the
book it was based on. Talk about your cross-promotional opportunities.
With all this talk about the New Economy and the volatile tech stocks,
maybe we should have been watching Onex. Schwartz and company have
consistently outperformed the market by making sound investments time
after time. Even when he loses the battle (Labatt, Air Canada),
Schwartz ends up winning.
As of this writing, Napster, the service that allows kids to download
music from the Internet, has been told that it must discontinue the
practice. It is a violation of international copyright. Haven't we
heard this song before?
It is time for the music industry to realize that the Internet is here
to stay. As long as there is music and kids, the latter will find a
way to get the music for free. When this same problem last came up,
the issue was free taping of albums. A realistic compromise was found
when a royalty payment was added to the cost of blank cassette tapes.
It was understood that the music would be taped either off the radio
or from records. A royalty on the blank tapes ensured that the artists
were paid and the public's desire for music was satisfied.
Surely the potential is there for another compromise. All it takes is
a little common sense and a spirit of co-operation. Of course we are
talking about an industry that includes the likes of Emminem, Marilyn
Manson and Sean (Puff Daddy) Combs, so it could be a while before we
see anything that resembles common sense.
Bernard Landry, Quebec's soon-to-be Premier, refused to accept $16
million from the federal government because the Canadian flag would
have to be flown at the Quebec City zoo. He stated that Quebec would
not "prostitute itself for a piece of red rag." Now Monsieur Landry
has announced that the Quebec government will give a grant of $18
million to L'Ecole Nationale du Cirque for the training of clowns.
Monsieur Landry feels there aren't enough clowns in Quebec.
I think I can name one or two.
ED PEARCE "
"Newsweek, Feb 26, 2001 p60
Playing Fair With Copyright: After Napster, the entertainment giants
might use technology to stop even legal copying. (Random
Access)(Science & Technology)(Brief Article) Steven Levy.
Full Text: COPYRIGHT 2001 Newsweek, Inc. All rights reserved. Any
reuse, distribution or alteration without express written permission
of Newsweek is prohibited. For permission: www.newsweek.com The
appellate judges have spoken: the indiscriminate music-sharing
bacchanalia must end. But can 62 million Napster users really be
wrong? Almost by definition, such a massive consumer force is a market
that must be served. That's why, at the same time they're trying to
shut down Napster, the giant entertainment conglomerates are
frantically trying to come up with their own business models to
somehow combine Napster's selection and ease with a big, fat cash
register on the other end. "They're engaged in Tarzan economics," says
Jim Griffin, CEO of Cherry Lane Digital. "Desperately holding on to
one vine--their old business model--until they can grab firm hold of
the next one."
Watch out, folks. "The next vine" might present a slew of copyright
problems even more difficult to untangle than the Napster case. It
turns out that the entertainment industry's ultimate line of defense
is not lawsuits. Instead, it plans to protect intellectual property
from the new technologies of digital copying with... new technologies
of digital anti-copying. Some of these are already in effect; the
movie DVDs you buy have a complicated coding system that prevents
copying. Other such technologies are in the works--including one just
announced by Napster itself to "manage digital rights" by preventing
users from burning CDs, and monitoring Nap-oids to make sure they're
behaving. The moguls insist such schemes will only maintain the status
quo from those palmy days when listeners didn't have CDs capable of
generating perfect copies, or Internet connections that transformed
sharing from a localized exchange to a global grabfest. But in many
cases, these schemes actually take away certain rights from consumers.
If the moguls have their way, not only will song sharing be outlawed,
but certain uses that music listeners and movie viewers take for
granted--like making copies for personal use or taking a snippet of a
copyrighted work for an educational purpose--will go the way of the
vinyl LP.
What's more, the industry has persuaded Congress to make sure nobody
tries to tamper with its schemes, even if the intent is only to engage
in "non-infringing" uses of music or film, like personal copies or
fair use. The Digital Millennium Copyright Act, passed in 1998, makes
it illegal for anyone to provide users with tools--or even publish
information about such tools--that would get around anti-copying
controls. But what if you wanted to circumvent the controls only for a
legal use? Or what if the work in question has entered the public
domain since publication, losing its copyright protection? Tough. "It
was way too broad," says University of California copyright expert
Pamela Samuelson. "A lot of icky consequences regarding fair use got
swept under the carpet."
These restrictions are currently being tested in the courts, and it
doesn't look good. When 2600 Magazine published the work of a
16-year-old Norwegian hacker who cracked the scheme that encodes movie
DVDs (his purpose was not piracy, but a means for Linux users to view
films on computers), it got hit with a lawsuit from the Motion Picture
Association of America. A district-court judge wasn't swayed by the
argument that the Millennium Copyright Act obliterates fair use, and
the case is now under appeal. The Electronic Frontier Foundation's Lee
Tien believes that the content industries will eventually use the laws
to create even more controls over creative works, engineering a
pay-per-view model for all forms of intellectual property. Instead of
buying a record or a book and enjoying it as often as you like, he
says, you might wind up having to fork over bucks every time you
reread the book or replay the tune. Tien also says that the content
holders hope to use their schemes to limit consumers from other
non-infringing pursuits they want to stamp out, like fast-forwarding
past commercials on digital video players.
Meanwhile, it's boom time for companies concocting schemes to lock up
creative works from infringers and paying customers alike. Just last
week I learned that an Israeli company called TTR has created a
technology called Safe Audio that allows music companies to press CDs
in such a way that digital copies can't be made. If the next Jennifer
Lopez disc you buy is Safe Audio-ized and you try to burn a CD copy,
or even use a software program to place it in your computer jukebox,
J. Lo's dulcet tones will be overwhelmed by horrible white noise.
TTR's Mark Tokayer notes that though U.S. consumers might have the
right to make such copies for themselves, the Sonys and AOL Time
Warners of the world have no legal obligation to provide you with the
means to exercise those rights. And the Millennium Copyright Act is
ready to whack you if you try to take those rights back. Tokayer says
that his company is negotiating with all the major entertainment
powers and expects Safe Audio to be on discs sold by the end of this
year.
Does this mean that we're doomed to whatever crumbs the Bertelsmanns
throw us? That eventually the wonderful so-called celestial jukebox
that comes from the availability of zillions of copyrighted works on
demand will require not only an endless stream of nickels, but a loss
of our traditional rights? Not necessarily. Pamela Samuelson believes
that if the combination of law, technology and industry greed
threatens to wipe out fair use, adjustments to the law can restore
what's been lost--if the people make their will known to their
legislators. Sixty-two million constituents can't be wrong. "
"Variety, Feb 26, 2001 v382 i2 pS7
Sounds of silence. (results of the ruling in the Napster copyright
case)(Brief Article)
Full Text: COPYRIGHT 2001 Cahners Business Information The court has
spoken, but it still feels like Napster has fighting chance
WHEN THE RECORD INDUSTRY scored a victory against file-sharing service
Napster, Hollywood paid close attention.
The decision found no merit in Napster's citing the Supreme Court's
landmark 1984 Betamax case, which gave rise to the "fair use"
principle by allowing some copying.
For the MPAA, the unanimous decision of the 9th Circuit Court of
Appeals couldn't have been better, clearing the way for studios to
offer their fare on the Internet under assurances that content won't
disappear into a cost-free zone.
Recently, MPAA prexy Jack Valenti and other Hollywood toppers have
begun an all-out lobbying assault to convince lawmakers that extending
copyright protection to the digital sphere is critical to the
industry's survival. The recent ruling appeared to bolster Hollywood's
stance.
But it should be noted that the 9th Circuit is the same circuit that
ruled in 1981 that the VCR was illegal before the ruling was
overturned by the Supreme Court.
In Napster's case, The 9th Circuit ruled that the recording companies
and publishers must notify Napster that it has copyrighted works on
its system before the site is required to disable access to the
offending content. The court added that Napster has the burden of
policing the system.
The opinion was seen as a mixed blessing for German media concern
Bertelsmann, which, last October, announced a joint venture with
Napster to develop an alternative to the company's current Internet
service.
BMG in a statement on the ruling maintained that it "remains committed
to the development of secure file-sharing services that compensate our
artists and other rights holders."
Defense attorneys for Napster plan to request that the full complement
of 9th Circuit judges convenes to review the panel's opinion, and will
pursue the appeals process as far as it's able. "
"Variety, Feb 19, 2001 v382 i1 p35
NAPSTER CHILL THRILLS PIC BIZ. (possible injunction against Napster
for copyright infringement bodes well for film industry)(Brief
Article) TIM SWANSON; PAMELA McCLINTOCK.
Full Text: COPYRIGHT 2001 Cahners Business Information
Behind his steely calm, Motion Picture Assn. of America prexy Jack
Valenti churned with concern. Why was a federal appeals court taking
so long to decide if Napster violated copyright laws?
For Valenti, the future of Hollywood was on the line. If studios
aren't able to take advantage of the Internet -- a potential gold mine
of a distribution system -- they'll be yesterday's news. But to
leverage their assets online, the studios need protection from piracy.
After he received word last week that an appeals court in San
Francisco had extended copyright protection to the Internet, Valenti
was able to breathe easier.
Specifically, the court ruled that file-swapping a song using Napster
is not the same thing as using a VCR to make a copy of a movie for
home use.
"I couldn't understand how it could be any other way, but the wait did
give me a couple of Maalox moments," Valenti says. "The decision is
just about as good as you can get."
According to Valenti and his member studios, the unanimous ruling
clears the way for studios to offer fare on the Internet with
assurances that the content won't disappear into a no-fee zone, with
copyright holders ignored.
But Consumer Electronics Assn. (CEA) prexy Gary Shapiro says
Hollywood's motives are suspect. He worries that the industry will
block the flow of content, holding out for the highest dollar.
"If the content industry has its way, the `play' button will become
the `pay' button, widening the digital divide and stalling the
revolution in instant, global access to education, information and
entertainment," Shapiro says.
Recently, Valenti has dropped hints that studios are ready to move
beyond using the Web primarily as a promotional tool.
While no major has released details of their online movie strategies,
most are believed to have plans to offer movies online before the end
of this year:
* Sony is set to bow its Internet-based MovieFly service in May, which
will allow consumers to download full-length feature films to their
computers.
* Disney is expected to put its library online for secure downloads at
Movies.com in the near future and is also planning to roll out its
set-top box, called the Movie Box, offering VOD.
* Miramax and Lions Gate have put parts of their libraries online,
hooking up with Sight-Sound.com and CinemaNow.com, respectively. Now
with the Napster ruling, they and other indies can be expected to
greenlight more films for the Web.
* Vivendi Universal has inked VOD deals with both homevid giant
Blockbuster and digital cabler Intertainer for new and catalog titles.
For the Hollywood studios, the recent Napster decision is yet another
victory in the ongoing battle over the online distribution of
intellectual property rights.
"We view (the Internet) as the next important frontier in the
distribution business. As we proceed, we now have a sense of
confidence that the courts will protect properties on the Web," says
Disney senior VP for corporate communications John Dreyer.
Although the Napster case has been sent back to district court for
further clarification, the industry saw the ruling as a decisive win.
Hollywood was especially heartened by the court's determination that
the U.S. Supreme Court's landmark 1984 Betamax ruling allowing some
copying had no merit in this instance, as argued by Napster defense
attorney David Boies.
"The extent that Boies was trying to analogize this to the Betamax
case should have sent a shiver up the MPAA's spine," says music
litigation and intellectual property attorney Larry Iser. "But the
courts said `No, that's not accurate.'"
However, some lawmakers on Capitol Hill share at least a part of
Shapiro's concern, including Sen. Orrin Hatch (R-Utah), chair of the
influential Senate Judiciary Committee.
If Hollywood wants Congress' help in extending certain laws into the
Digital Age, the studios must be good sports and provide a steady flow
of content, at a fair price.
But it's not lost on Valenti and others that Republicans -- who now
control Washington -- are pro-property. So it's natural to assume the
GOP is pro-copyright. A movie is property, after all.
Though they appear to have this victory under their belts, studios
must extend their string of recent legal victories.
In August, a federal court in Gotham sided with the film industry in
its effort to shut down sites offering DVD decryption software,
specifically a program called DeCSS, that can unlock and copy DVDs,
making it possible to distribute movies on the Web.
Last year, file-sharing site Scour, which swapped copies of movies
such as "X-Men" while the films were still in theatrical release, was
effectively put out of business by a $250 billion lawsuit filed by 33
entertainment companies, including the MPAA.
Despite these victories, there are still plenty of peer-to-peer sites,
where users trade directly with other uses on the Web. On these
networks, Netizens anywhere in the world can download pics -- many of
which are still in theatrical release.
Although the court's recent decision may indicate Napster's demise in
its current incarnation, the ruling fails to address other
peer-to-peer networks, such as Gnutella and FreeNet, which also offer
audio and video files for free. These companies differ from Napster in
that they operate without a central server. Since users trade
directly, there is no company to sue, and policing copyright
infringement becomes extremely difficult.
And for the movie studios, the fight with these networks may be just
beginning, with the battles most likely taking place in both civil and
criminal courts.
"In the new peer-to-peer world, entertainment companies will have to
go after individuals who are sharing the content," says Scour
co-founder Travis Kalanick. "And usually, studios don't want to
prosecute their customers."
Marc Graser and Justin Oppelaar contributed to this story. "
"Network World, Feb 12, 2001 pNA
Court: Napster infringes copyright, can continue operating. (Company
Business and Marketing) Sam Costello.
Full Text: COPYRIGHT 2001 Network World, Inc. The Ninth Circuit of the
U.S. Court of Appeals Monday ruled that Napster infringes on record
company copyrights through the operation of its music file-trading
service. The ruling, however, also directed that the Napster service
be allowed to continue operations until the original injunction is
modified to comply with the appeals court's decision.
The court upheld the findings of a lower court almost universally,
holding that Napster's service is not protected by fair use, is guilty
of two kinds of copyright infringement, has failed to police its
system in an attempt to stop the spread of copyrighted works and that
its service causes substantial harm to record companies.
"Napster, by its conduct, knowingly encourages and assists the
infringement of [record company] copyrights," the court wrote in its
decision.
The ruling was the result of a lawsuit brought by The Recording
Industry Association of America (RIAA) on behalf of the five major
record labels - BMG Entertainment, Warner Bros. Music Group, EMI
Group, Sony Music Entertainment and Universal Music Group - in
December 1999.
The RIAA had asked the court to find the company guilty of
contributory and vicarious copyright infringement and to shut down the
service because it was causing its member companies irreparable harm.
The trading of MP3 files, it said, amounted to stealing, as it allowed
users who had not purchased songs to download, play and store them.
The RIAA charged that Napster executives knew that infringement was
taking place and were contributing to it by providing the service.
The Napster service allows users to search for MP3 music files on the
computers of other users online and download the tracks they want
directly from those users, bypassing any central servers, a technique
called peer-to-peer computing. The lack of central servers in the
system was at the heart of Napster's defense. Because no copyrighted
material resided on company servers, which only house directories of
files, not the files themselves, Napster argued that it was not liable
for any infringement being committed.
It could not be held liable, the company further argued, because in
trading files its users were simply exercising their right to fair
use. Fair use is a consumer right that allows private, noncommercial
trading of copyrighted materials among friends and family. Napster
argued that MP3-swapping was simply an extension of fair use for the
Internet age and thus should be protected. The company further argued
that the RIAA's own figures showed that music sales increased in 2000
and that Napster, therefore, was not causing harm, but rather was
spurring sales.
Judge Marilyn H. Patel disagreed and issued an injunction against the
company in late July, ordering that the service be shut down
immediately, pending resolution of the trial. That injunction was
stayed the next day, however, by a U.S. Appeals Court. Monday's
decision is the result of oral arguments made before the Ninth Circuit
in October.
In late October, Napster signed a surprise agreement with Bertelsmann,
the parent company of BMG, one of the record companies suing Napster,
in which Napster pledged to create a secure, copyright-friendly
subscription service in exchange for a reported investment of $50
million and Bertelsmann dropping its suit. Since then, music companies
TVT Records and edel music AG have also signed agreements with
Napster. None of the four remaining major labels, widely seen as being
integral to the success of such a service, have yet made any moves
toward signing such deals. Napster's subscription service, which will
also give Bertelsmann a hefty ownership stake in the company, will
become available in June or July, a Bertelsmann executive said
recently.
Napster, with an estimated 60 million users, was founded by
Northeastern University dropout Shawn Fanning in 1999. "
"Newsbytes, Jan 25, 2001 pNWSB01025007
TVT Records Drops Napster Copyright Suit. (Company Business and
Marketing) Martin Stone.
Full Text: COPYRIGHT 2001 Newsbytes News Network Thanks to the recent
strategic alliance between embattled Napster Inc. and major record
label BMG, TVT Records, one of the largest US independents, has
dropped its lawsuit against Napster.
A Reuters report today said TVT, home to rapper Snoop Dogg and other
well-known acts, announced it has dropped an estimated $1.5 billion in
copyright infringement claims against Napster, and cites TVT President
Steven Gottlieb as saying the basis for the decision to end the suit
and provide support to Napster is the new service Napster is evolving
under a recent deal with Bertelsmann AG, parent of BMG Music. The TVT
suit sought $150,000 per infringement, claiming 10,000 separate
copyrights were involved.
Bertelsmann was one of five major record companies suing for copyright
infringement against Napster, the site which enabled users to swap
songs for free and has attracted over 45 million users, sparking a
revolution in the music industry and forcing a re-examination of
copyright law. Last October Bertelsmann broke ranks with the other
labels, saying it would drop its suit once Napster was recast as a
fee-charging service paying royalties to artists and record companies.
The German company invested $50 million to $70 million in Napster and
invited other labels to join the alliance. TVT is the first label to
fully settle with Napster, Reuters said.
Reported by Newsbytes.com, http://www.newsbytes.com .
07:07 CST
(20010125/WIRES ONLINE, LEGAL, BUSINESS/NAPLAW/PHOTO) "
"San Francisco Business Times, Jan 5, 2001 v15 i22 p7
Napster files copyright suit. (Brief Article)
Full Text: COPYRIGHT 2001 San Francisco Business Times, Inc. Napster
Inc., the controversial Internet song-swap service that is the subject
of a landmark music industry copyright lawsuit, announced it has filed
a trademark infringement suit of its own. Redwood City-based Napster
said it had filed the suit against Sports Service Inc., which operates
a web site called. Napsterstore.com and sells merchandise imprinted
with Napster's logo. Earlier, Napster announced a partnership with
Germany's Edel Music AG, an independent record label, to offer
recordings under a new fee-based service that Napster is developing
with Bertelsmann AG. "
"Newsbytes, Jan 2, 2001 pNWSB0100200C
Napster Files Copyright Suit. (Company Business and Marketing)(Brief
Article) Ian Stokell.
Full Text: COPYRIGHT 2001 Newsbytes News Network Napster Inc., one of
the most controversial and legally embattled companies in the high
technology industry, put itself on the other side of the court system
last week when it filed a logo copyright suit against a Southern
California firm company that is using the company's cat logo on such
merchandise as T-shirts and hats.
The Wall Street Journal reports that the offending company - Sports
Service Inc. - sells such Napster-oriented products on its
Napsterstore.com Web site at http://www.napsterstore.com .
The suit was filed in a US District Court in San Francisco.
The WSJ points out that the suit isn't as ironic as it sounds, because
Napster isn't against maintaining copyright per se, especially on
logos which are useful as a marketing tool only as long as they are
not in general use by the public, but that in its ongoing intellectual
property battle with major record companies, Napster is merely arguing
that it should not be held responsible for what its users do with the
music they download from other members via the Internet.
Reported by Newsbytes.com, http://www.newsbytes.com .
07:38 CST
(20010102/WIRES ONLINE, PC, LEGAL, BUSINESS /NAPSTERCOURT/PHOTO) "
"Online, Nov 2000 v24 i6 p16
NAPSTER Copyright Killer or Distribution Hero? Chris Sherman.
Full Text: COPYRIGHT 2000 Online, Inc.
"We didn't get into this 'space' cuz we're Internet gold seeking
cockos. We're legitimate nihilistic media terrorists as history will
no doubt canonize us."
Near the turn of the century, a new technology quietly emerged that
enabled music fans to share their favorite songs with unprecedented
ease. The technology garnered high acclaim and endorsements from its
user community, which in turn fueled an explosion of new users,
fostering widespread adoption of the technology at an astonishing
rate. And no wonder--the new music format was highly portable, easy to
use, and music suffered no degradation in quality when transported
from location to location.
Naturally, the new technology alarmed the powerful music industry,
which moved quickly to eradicate this newly perceived threat. Lawsuits
alleging copyright infringement were filed against the company most
prominently associated with the new technology. An extended,
acrimonious battle was waged both in the media and in the courts,
ultimately resulting in a Supreme Court decision that supported the
defendants and their new technology, striking what the music industry
claimed would be a "mortal blow" to its livelihood.
It's a familiar story, of course. But this isn't the by-now
all-too-familiar tale of the Recording Industry Association of America
(RIAA) versus Napster. The "new technology" at issue was the player
piano scroll, and the plaintiff was the White-Smith Music Publishing
Company, purveyor of copyrighted sheet music for such popular tunes as
"Little Cotton Dolly" and "Kentucky Babe." The Supreme Court's 1908
ruling was a Phyrric victory for defendant Apollo Co., however. In
1909, Congress extended copyright law to accommodate new technological
advances, including the piano scroll and recordings for Thomas
Edison's killer app, the phonograph.
Copyright disputes go back to the invention of the printing press.
Copyright law seeks to find a balance between protecting the rights of
content owners, allowing them to reap rewards for their efforts, and
championing the common good, which demands relatively free and
unimpeded flow of ideas and information for effective social
discourse. Time and again throughout history, new technologies have
tested the limits of copyright, and copyright owners have labored to
halt technological advances that threaten their loss of control over
distribution.
Napster is just the latest in a long series of nascent technologies
that incurred the wrath of copyright owners. The wax recorder, the
phonograph, the tape recorder, the video cassette recorder, the floppy
disk, the compact disc, DVD--all of these technologies met fierce
resistance from cartels that controlled copyrighted content. The
argument against each new technology was as repetitive as a broken
record--we must prevent non-authorized copies or risk catastrophic
financial hardship. In every case, the fear was misguided--the new
technologies invariably increased demand, leading to increased sales
and greater profits.
And then came Napster. Predictably, the RIAA launched an assault on
this upstart interloper that poses a clear threat to the
establishment. But the ultimate outcome of this copyright tussle is
likely to be different--very different--this time.
NOT YOUR FATHER'S SEARCH ENGINE
Napster. A silly word coined to describe a teenager's "nappy" haircut.
A simple tool designed to make finding and sharing digital music easy.
And, at least in the eyes of powerful interests in the recording
industry, Napster is the scourge of the earth.
Napster's impact on the Internet has been as profound as the
introduction of the first graphical Web browser. In its short life,
Napster has become the most successful new Web technology ever,
gaining more than 25 million registered users in just over a year of
existence. It also gained the dubious distinction of being the Web's
most controversial software, prompting congressional hearings and
contentious lawsuits, with shrill accusations of "theft" and "piracy,"
countered by claims of "fair use" and "free speech."
Napster is one of a new generation of Peer-to-Peer (P2P) distributed
search and sharing systems that embody enormous implications for
information professionals. Although the Napster controversy is
primarily over MP3 music files, Napster-like technology is emerging
that is capable of handling files of virtually any type. Like Napster,
it offers new and potentially more effective methods of information
retrieval, transcending many problems afflicting current search
technologies. But it also has a dark side, with the potential to
unleash a virtual Pandora's box of problems related to copyright and
the ownership of content.
Many information professionals harbor conflicting views about
Napster's technology and its uses. This ambivalence is understandable,
but the uncomfortable feelings are not going away any time soon.
Napster represents just the tip of the iceberg of massive, inevitable
change that's going to affect virtually all aspects of information
search and retrieval. To understand the implications of this tsunami
of impending change, it's important to look at its origins and the
directions it's likely to take moving forward.
I WANT MY MP3
Napster's story is the stuff of legend. A dirt-poor but clever boy
named Shawn Fanning gets a break and attends Northeastern University
in Boston to study computer science. Like many college students, he's
seduced by the vast range of music available by swapping tapes and MP3
files with his peers. His roommate complains about how difficult it is
to find music on the Web--search engines, even specialized MP3 search
engines, often failed miserably, their indexes rife with broken links.
So Fanning hacks together a simple little program that allows people
to search the hard drives of fellow music fans for MP3 files. Bored
with school and encouraged by his uncle John-a modestly successful
software entrepreneur-Shawn drops out of school to work full time on
his program. In the tradition of all Net hackers, he logs into online
chat rooms using his boyhood nickname "Napster" to solicit feedback
and suggestions for his program. On June 1, 1999, he gives the program
to 30 of his chat pals, asking them to keep the program to themselves
and not spread the word. Right.
Here's the key to the candy store, kids. Don't tell anyone. In just a
few days, 3,000 to 4,000 people had downloaded Napster. Little more
than a year later, more than 25 million people had registered to use
the program. Shawn Fanning had unleashed on the Web the most popular,
viral piece of software ever.
When the recording industry sued Napster in December 1999, the story
was widely told as a David versus Goliath struggle. When popular rock
band Metallica filed its own lawsuit against Napster in April 2000,
the story gained a Robin Hood element, a struggle of mythic
proportions. Clever kid versus corporate titans. The obscenely wealthy
versus struggling students.
That's the legend. The reality is somewhat different. Behind Napster's
band of merry programmers stand powerful business interests. In May of
1999, a month before Shawn finished his test version of Napster, his
uncle John incorporated Napster, giving his nephew a 30% stake. During
the course of the year, the elder Fanning hired professional managers,
moved the company to Silicon Valley, and secured venture funding from
angel investors and notable VC firm Hummer Winblad Venture Partners.
Napster also got Hummer Winblad partner Hank Barry to take over as
CEO. Barry, a skilled attorney and expert in copyright law, wasted no
time in fortifying the company for its legal battles. Within a month
of starting work, Barry retained Microsoft nemesis David Boies to
assist with Napster's legal defense. Three days later, he hired Milton
Olin, a former senior vice president at A&M Records, to be COO. Three
weeks after that, Keith Bernstein, former vice president at Universal
Music Group's digital-music division, joined the company.
So while the myths portray the altruistic student locked in a heroic
struggle against the greedy tycoons of the recording industry, the
truth is quite different. The people behind Napster are building a
business--one, that if it survives, has the potential to rival AOL,
Yahoo!, and other Web titans, ultimately yielding its investors a
stratospheric return.
WHAT NAPSTER IS--AND ISN'T
Napster--the software--also isn't quite what it seems. Portrayed as a
CD-pilfering device, in reality it's nothing more than a niche File
Transfer Protocol (FTP) client bolted together with a chat client.
Napster does not make copies of CDs or create MP3 files from CD audio
originals. This requires a separate piece of software that "rips" CD
audio songs into the MP3 format. Napster's "copying" function is
limited to locating and transferring MP3 files from one computer to
another.
Napster largely solves the problem that plagues search engines when it
comes to indexing MP3 files on the Web. Many hosts prohibit
copyrighted materials on their servers, and the music industry
actively polices the Web and forces offenders to remove the files.
This creates a nightmare scenario for search engines, which often
index MP3 files that may disappear days or even hours later. The
engines just can't keep pace.
Fanning realized that the most reliable sources for locating MP3 files
were the local hard drives of music fans. Unlike Web search engines,
which send out indexing spiders to find pages on the Web, Napster uses
an opposite approach. Users download Napster client software, which
then scans a local hard drive for MP3 files. The client then uploads a
simple list of the files the user is willing to share to Napster's
central directory. Users search this directory (also using the client
software) for songs or artists of interest. Results from the Napster
directory display song titles and a link to a computer that has a copy
of the file available for sharing. With a simple click, the Napster
client initiates a peer-to-peer file transfer--no files are
transferred through Napster's servers.
In short, the Napster client enables one-to-one sharing of music files
between consenting users. Napster believes that this sharing is legal
under the Federal statute called the "Audio Home Recording Act,"
(AHRA), which gives consumers the right to create and transfer digital
music for noncommercial purposes. It's legal to create MP3 songs from
a CD you own to play on your portable MP3 player, or even burn a new
CD to play in your car. You can also give this CD to a friend. This is
"fair use" of copyrighted material you have purchased.
Codswallop, counters the recording industry. Although Napster
technically is a one-to-one file-sharing system, the fact that
millions of users can share songs with one another is an egregious
violation of copyright and constitutes outright "theft" of
intellectual property. This is the essence of the recording industry's
suit against Napster, and why it wants the service shut down.
But the recording industry is playing a dangerous game. Napster is a
centralized service, so it's easy to shut it down. File sharing, a
mainstay of Web activity that's considered almost a "right" by many
users, is too popular to stomp out in one fell swoop. In the
underground reaches of the Web, clever hackers have created
decentralized programs that perform all of Napster's functions-- and
more. Shuttering Napster will be like beheading Hydra, with two new
heads growing back for every one hacked off.
"LEGITIMATE NIHILISTIC MEDIA TERRORISTS"
On March 14, 2000, a new file-sharing program was quietly introduced
on a back page of one of AOL's subsidiaries, Nullsoft. The program was
called Gnutella, in homage to the GNU Open Source Software Movement,
and Nullsoft programmers' fondness for Nutella, a chocolate/hazelnut
spread popular in Europe. A Napster workalike ostensibly designed to
help alleviate Napster's bandwidth hogging problems, Gnutella was
immediately hailed by the influential computer ezine Slashdot as "open
source Napster."
Then, little more than 24 hours after being posted, the program was
gone. "The Gnutella software was an unauthorized freelance project,
and the Web site that allowed access to the software was taken down
yesterday," said Josh Felser, general manager for Nullsoft's Winamp
program, in a statement issued on March 16.
Too late--the genie was out of the bottle. Thousands of Slashdot users
had downloaded the program, many of them skilled hackers who
immediately began reverse-engineering the code. Within days of
Nullsoft's release of Gnutella, clones of the program began to appear
on the Web.
Unlike Napster, Gnutella uses no central directory of files. The
Gnutella Network, or gNet, is almost completely a peer-to-peer
network, with thousands of computers on the gNet communicating
directly with one another. Gnutella works like the "telephone" parlor
game, where search requests are passed from machine to machine
throughout the network. If a computer can't satisfy a search request,
it passes it along to numerous other computers on the gNet, expanding
the search "horizon" to include potentially thousands of computers.
When a computer on the gNet can satisfy a search request, it passes
its information back to your Gnutella client, allowing you to initiate
a file transfer directly with that machine.
Gnutella goes beyond Napster in allowing files of any type to be
shared. MP3 audio, DVD, text, graphics-- Gnutella is format agnostic.
This capability has rightly scared content owners perhaps even more
than Napster. Since Gnutella has no centralized server, content owners
would have to go after every Gnutella user on the Net, clearly a
Herculean task.
But Hercules was ultimately successful in killing the Hydra, and
although proponents of Gnutella and other open-source distributed
search programs proclaim its invulnerability, there are several
problems with the program that make it less appealing than Napster.
First, Gnutella's programmers viewed their task fundamentally as a
cool problem to solve rather than creating something easy to use. Even
after months of development, most Gnutella clients lack the simplicity
and ease of use offered by Napster. And the very power offered by the
program can boomerang and smack an incautious user, allowing personal
files to be accessed from remote machines, or by inadvertently
allowing remote users to tie up so many system resources that the
computer becomes nearly unusable.
Gnutella's peer-to-peer model does not scale well, at least in the
initial versions of the program. When a U.S. judge issued an
injunction against Napster, thousands of fans in search of an
alternative started using the program, with a noticeable degradation
in the performance of the network. Anonymity is also a problem on
gNet. While searchers are effectively anonymous due to the "pass me
on" nature of queries, a server must send its IP address to the
searcher so that the file transfer can be initiated. And since there
is no centralized control, the gNet is vulnerable to spam.
Gnutella developers are addressing all of these problems, but in the
short run, Gnutella requires patience and skills beyond the ken of
most Web users. And the lack of an "official" version of the program
confounds many users, who are uncertain which of the many clones is
the best to use (Nullsoft never upgraded its original release, and
never will, according to parent company AOL).
OTHER FILE-SHARING NETWORKS
While Napster and Gnutella garner the most media attention, dozens of
other initiatives use similar file sharing and distributed search
models. Many are attempting to legitimize their efforts by
incorporating digital-rights management systems, ensuring that content
owners maintain a degree of control over their works and are
compensated when a digital file is copied.
For example, AppleSoup, the brainchild of two Napster veterans, plans
to give consumers broad access to material currently not available on
the Internet, without endangering intellectual property rights.
AppleSoup's system assigns rights-management rules and procedures to
copyrighted content, while maintaining a friendly Napster-like
interface. This will allow content owners to control, distribute, and
even sell their content via AppleSoup's peer-to-peer network.
Another startup is attempting to compensate both content owners and
users who contribute computing resources to its network. MojoNation
takes more of a Gnutella-like approach, eschewing a centralized
directory in favor of small programs that run on individual computers
to create its network. Anyone can add or search for content. However,
unlike Gnutella, MojoNation compensates users of the network for
providing services to the network, including publishing and storing
content, caching popular content, hosting tracker (search) services,
and so on. Compensation is provided in the form of Mojo, the internal
currency, which can be traded to download content or exchanged for
cash.
Further out on the distributed spectrum is FreeNet, which is
completely decentralized, meaning that there is no person, computer,
or organization in control of FreeNet--even the people creating and
maintaining it! According to FreeNet's FAQ, "Information on FreeNet is
not stored at fixed locations or subject to any kind of centralized
control. FreeNet is a single worldwide information store that stores,
caches, and distributes the information based on demand."
The FAQ continues: "It will be virtually impossible to forcibly remove
a piece of information from FreeNet. Both authors and readers of
information stored on this system may remain anonymous if they wish.
Information will be distributed throughout the FreeNet network in such
a way that it is difficult to determine where information is being
stored." In other words, FreeNet will be a veritable nightmare for
content owners, government authorities, and anyone else with a vested
interest in controlling or overseeing online content.
FreeNet is operational, but is not currently searchable. To access
information, you must know the "key" that was associated with the
information when it was stored on FreeNet. Nonetheless, as FreeNet
grows and gains functionality, it could present the most serious
threat to copyright ever seen. And, since the program is perfectly
legal, it appears all but unstoppable.
P2P AND GATED COMMUNITIES
Some file-sharing initiatives using Napster- and Gnutella-style
technologies are being developed for very specific communities, as
research or productivity tools. For example, scientists working on the
Human Genome Project use a Gnutella-like program to share genomic data
with one another. Computer security company MyCIO.com has developed a
program called Rumor that automatically updates virus protection
systems on a network using peer-to-peer technology.
Particularly intriguing for the information professional community is
a proposal by librarian Daniel Chudnov for a Napster-like program he
calls Docster. "Imagine all the researchers you know, with a new
bibliographic management tool that combined file storage with a
Napster-like communications protocol--Docster," writes Chudnov on his
Web site. "Instead of just citations, Docster also stores the files
themselves and retains a connection between the citation metadata and
each corresponding file. Somewhere in the ether is a Docster server to
which those researchers connect. They're reading one of their
articles, and they find a new reference they want to pull up. What to
do? Just query Docster for it. Docster will figure out who else among
those connected has a copy of that article, and if it's found,
requests and saves a copy for our friendly researcher.
"For any article that had ever been filled into the Docster
environment (and that still lives on a connected machine), there would
be no more placing a request, verifying the cite, placing the order,
claiming the order, pulling from stacks, copying, Arieling,
Prosperoing, emailing, etc., not to mention all the logging and
tracking we rekey when moving requests from one system to the next
when we don't have an ILL automation system (and even if we do). Your
happy researcher would just need to type in a search
and-hopefully--download what she needs. If not, you or your neighborly
peer library make the copy and send. Once. And nobody else has to
again."
For all of Docster's appeal, Chudnov is quick to point out the myriad
of problems that creating and maintaining such a system would entail.
But he also lays out a persuasive proposal that could satisfy the
needs of all key players. Anyone heavily involved in document delivery
would do well to study Chudnov's proposal, and perhaps join forces
with him to see it implemented.
DON'T SHOOT ME, I'M ONLY THE PIANO PLAYER
At the time of writing, Napster's future was uncertain. Napster foes
would do well to consider Metcalfe's Law, which states that the
usefulness, or utility, of a network equals the square of the number
of users. More prosaically, Napster, with its millions of users, is a
ready-made distribution channel that in all likelihood could be
modified to both control digital music distribution and reap enormous
additional profits for the recording industry. RIAA maintains that
sharing MP3 files with Napster amounts to theft--but until recently it
has provided no legitimate alternative. Fans were stuck with
traditional formats like CDs and cassette tapes, unable to pay for
single MP3 songs even if they wanted to.
Despite its apparent position of power, the recording industry is
vulnerable on more than one front. Key lawmakers have bluntly told the
industry to find a solution to the music-sharing "problem" or face
arbitrary legislation. Musicians, on sites like MP3.com, are
self-publishing, bypassing the machinery of the industry altogether.
And systems like FreeNet may render the recording industry's
traditional heavy-handed techniques ineffective.
Regardless of whether Napster survives or not, there are dozens of
other peer-to-peer networking initiatives ready to take its place. In
the dawn of the new millennium, Hydra has once again reared her
imperishable head.
Chris Sherman (websearch.guide@about.com or
http://websearch.about.com) holds an MA from Stanford University in
Interactive Educational Technology and has worked in the
Internet/Multimedia industry for two decades, currently as President
of Searchwise.net, a consulting firm specializing in monitoring
emerging trends and companies involved with Web search technologies.
Copyright vs. Copyleft
Copyright originated about 1509 in England, and was a key concern of
the founding fathers of the U.S. In 1790, the Philadelphia Spelling
Book was the first work to be copyrighted in the U.S. Initially, the
law granted copyrights of as long as 28 years for books, maps, and
charts. Today, copyrights are good for 70 years after the creator's
death.
From 1831 on, sheet music could be copyrighted, but it wasn't until
the early 1970s that music and other sounds were offered the same
protections. Since then, advances in digital technology--and in
particular, the stunning growth of the Internet--have forced both
content owners and lawmakers to frequently revisit the law. The most
recent amendment to the law was the 1998 Digital Millennium Copyright
Act. Though existing copyright law extended to the Web, the new law
dealt specifically with issues like the ease with which information
can be accessed and distributed online.
As the Napster situation shows, there are still many more areas that
require clarification. People who take the view that copyright is
absolute find no problem accusing Napster users of blatant theft when
they download copyrighted works from another user's machine. Yet the
Federal statute called the "Audio Home Recording Act" (AHRA] appears
to give consumers the right to create and transfer digital music for
noncommercial purposes--which is what most Napster users are doing.
Complicating the issue further are proponents of the "open source"
movement, the primary proselytizers of the "information wants to be
free" slogan. According to the GNU philosophy, if you copy information
through an automatic method that requires essentially no material or
labor, then the person who has given the information has not lost
anything, and in fact greater value is gained, because now two people
have the information.
Somewhat paradoxically, the GNU philosophy doesn't undermine
traditional copyright. Instead, it attempts to extend protection to
material that otherwise would be considered to be in the public
domain, by the use of "copyleft." As the Free Software Foundation's
Web site explains, "To copyleft a program, first we copyright it; then
we add distribution terms, which are a legal instrument that gives
everyone the rights to use, modify, and redistribute the program's
code or any program derived from it but only if the distribution terms
are unchanged. Thus, the code and the freedoms become legally
inseparable. Proprietary software developers use copyright to take
away the users' freedom; we use copyright to guarantee their freedom.
That's why we reverse the name, changing "copyright" into "copyleft."
There's not as much consensus on the extent of copyright protection in
the digital world as the law would suggest. Even groups such as the
Association of American Universities have petitioned the Copyright
Office to grant an exemption on digital versions of scholarly
journals, maps, newspaper archives, and some databases, arguing that
these materials are valuable mostly for their facts--which aren't
copy-rightable. Librarians from institutions such as the Library of
Congress, which oversees the Copyright Office, the National Archives
and Records Administration, and the National Library of Medicine, have
also indicated support for a looser interpretation of copyright in the
digital domain when it's clear the public good is being served.
Napster's Ancestors
Shawn Fanning is commonly credited as the visionary who came up with
the idea of combining search and file sharing, but the practice is
almost as old as the Internet itself. The original method for sharing
files on the net was via a Telnet connection using File Transfer
Protocol (FTP], a system that originated in '1971 at MIT. The original
proposal for FTP submitted as an RFC to the Network Working Committee
stated, "The objectives of FTP are 1) to promote sharing of files
(computer programs and/or data), and 2) to encourage indirect or
implicit (via programs) use of remote computers." The problem with
early FTP was that it required users to Telnet into a specific host
computer and explicitly request a document by its filename. If you
didn't know a document's name or where on the Internet it was located,
you were out of luck.
This cumbersome process was eased somewhat in 1990 with the
development of a program called Archie, created by Alan Emtage, a
student at McGill University in Montreal. In many respects, Archie was
the first Internet search engine. It worked by regularly connecting to
remote public FTP hosts and automatically downloading directory
listings of public files. Emtage originally called the program
"archives," but falling in with de rigueur cryptic Unix file naming
standards shortened it to Archie.
Archie servers maintained simple indexes of FTP host computers and
filenames, helping you locate the file you were looking for. Archie
servers were searchable, but results were simply filenames containing
your search keywords together with the file's host location.
Aliweb, created in October 1993 by Martijn Koster, was a Web-based
equivalent of Archie. Aliweb took a step closer to the full-text
search engines we know today by allowing Webmasters of participating
sites to create their own index information for each page. This
allowed keyword searches not just in filenames, but in file
descriptions or URLs as well. The advent of robot-compiled search
engine indexes in early 1994 spelled an early doom for Archie and
Aliweb.
There are many other longstanding methods used to share files.
Internet Relay Chat (IRC], bulletin board system, and even email have
all proven effective as means for file swapping. But
Napster--combining an easy-to-use central directory with an FTP client
that could initiate a real-time, peer-to-peer file transfer--proved to
be the killer app.
Safe Searching with Napster & Gnutella
Napster and Gnutella are designed to allow complete strangers to copy
files from any computer using the services. This naturally raises
valid concerns: are these programs safe? Can others copy personal
information that I don't want shared? Is my computer vulnerable to
viruses or hacker attack?
The simple answer is that the programs are essentially safe to use.
Both Napster and Gnutella require you to enable sharing before anyone
can access files on your computer. Both programs must then scan the
folders you've specified to compile the list of files available for
sharing.
In Napster's case, the only files that can be shared are valid MP3
files. Since MP3 files are essentially compressed data files with no
executable code, they cannot carry viruses, worms, or other nasty
epathogens that might infect and disable your computer. Similarly,
since Napster recognizes only MP3 files, there's no risk that a
Napster user might purloin your sensitive personal information.
Because it is more flexible, Gnutella poses a few more risks for the
unwary. Since Gnutella can recognize and exchange any kind of file,
it's extremely important to create special Gnutella-only folders that
isolate the files you upload and download from all other folders on
your computer. And since Gnutella allows downloading of program files,
you should take all the normal precautions you'd ordinarily take when
opening an executable file--in other words, only open files from
sources you know and trust.
Both Napster and Gnutella are vulnerable to the other scourge of the
Net--spam. "Napster bombs" are deliberately misnamed files designed to
lure users into hearing something they ordinarily wouldn't listen to.
For example, an unknown band might make one of its songs available,
deviously naming it with the title of a hit from NSync or Britney
Spears. A program called Wrapster also enables devious users to wrap"
files of any type in an envelope that makes them appear to be
legitimate MP3 files.
Gnutella users are also vulnerable to VBS worms, programs that use the
Visual Basic Script language to infect computers. There's a simple way
to avoid problems, however--never execute any file with a .vbs
extension.
LINKS
Napster http://www.napster.com
Gnutella http://gnutella.wego.com/
Gnutella FAQ http://www.gnutellanews.com/information/faq.shtml
Cap'n Bry's gnutella search--Web-based Gnutella search form & code
http://capnbry.dyndns.org/gnutella/gs.php
Nullsoft http://www.nullsoft.com
COPYLEFT
What is copyleft? http://www.gnu.org/copyleft/copyleft.html
GNU General Public License http://www.gnu.org/copyleft/gpl.html
OTHER PROGRAMS
FreeNet http://freenet.sourceforge.net
MojoNation http://www.mojonation.net/
Docster: Instant document delivery
http://www.hapir-index.com/docster.htm "
"Newsweek, Oct 16, 2000 p58
Napster's Offspring: Peer-to-peer upstarts try to fulfill a pioneer's
promise. (THE VALLEY)(Science & Technology)(Napster's copyright case
may affect other internet businesses)(Brief Article) Brad Stone.
Full Text: COPYRIGHT 2000 Newsweek, Inc. All rights reserved. Any
reuse, distribution or alteration without express written permission
of Newsweek is prohibited. For permission: www.newsweek.com It was not
your typical day at the venture capitalist's office. Clarence Kwan,
the 28-year-old CEO of Internet start-up Lightshare, found himself
interrupting a daylong meeting last Monday to check the TV in the
lobby, get news reports from the Web and call friends for updates. The
source of his curiosity lay 30 miles to the north, where Napster was
facing off against the major music labels in a San Francisco federal
court. At stake was Napster's fate, but also, perhaps, Lightshare's.
Kwan bills his 16-employee, Mountain View, Calif.-based company as a
cross between the song-swapping service and auction site eBay. If
Napster loses the case and is shut down, Kwan reasons, copyright
holders might be emboldened to sue other Net start-ups, but on the
other hand, "the people who can't use Napster might use us." If
Napster wins, it's also a mixed blessing: Napster look-alikes could
have broad leeway but a difficult time finding users because of
Napster's head start. "This is pretty big for us," Kwan says. "We're
watching it very closely."
So is the rest of the tech universe. The rampantly popular Napster
service, started by 19-year-old Shawn Fanning in a Northeastern
University dorm room, allows an estimated 32 million users to freely
trade songs over the Net, copy-rights be damned. Last week three
federal judges heard an hour of arguments from lawyers representing
the Recording Industry Association of America, and from Napster
attorney David Boies. The judges peppered both sides with questions,
and a ruling on whether to overturn or uphold the injunction issued
last summer should come within the next month.
But even if Napster dies, the industry it has spawned will survive and
has the potential to change the Internet. Napster lets its users
around the world shoot songs directly from hard drive to hard drive.
That decentralized architecture is called "peer-to-peer" and has been
tagged as the next stage in the evolution of the Internet. And it's at
the center of an entrepreneurial fad with all the enthusiasm, hype and
mimicry of previous crazes--remember the "portal wars" and buying dog
food online? None of these so-called P-to-P start-ups has made a lick
of money, of course, and investors are more skeptical than usual,
given the cold bath many Netcos are taking in the stock market.
Moreover, these nascent firms have to navigate through all the legal,
business and technical problems that Napster has encountered. "Times
will be tough for people in a market with big legal judgments hanging
over it, in a space where nobody has made any money yet," says Yankee
Group analyst Jim Penhune.
For enthusiasts, peer-to-peer fulfills the promise of the early
Internet, pushing computing to the fringes of the global network.
Instead of big central servers sending out everything from music files
to stock quotes, the content resides on everyone's computers and is
shared. Ray Ozzie, developer of the popular pro-gram Lotus Notes and
now the head of secretive P-to-P start-up Groove Networks, says the
technology allows computer users to interact directly, as they do in
normal life with phones and faxes, without servers' acting as
intermediaries. More than 100 start-ups are trying to take advantage
of that simple idea. Some seek to facilitate trading of digital files
like music, but also movies, books or corporate documents; others
simply want to maximize computing resources, harnessing all the
storage and processing power of each computer in a network.
It's the file sharers who are tied most closely to Napster's fate in
court. These are the firms positioning themselves as "legitimate
Napsters," with names such as FlyCode and iPingPong. They're crowding
the halls of music labels and movie studios, trying to strike
licensing deals in the event that Napster loses. One problem:
copyright holders seem reluctant to create another dot-com behemoth
built on their intellectual property. "I just get the sense they are
in a wait-and-see mode," says Yossi Krasnjanski, founder of the New
York City-based GlobeDrive.
Many other P-to-P firms call the Napster case a red herring, and say
the technology behind it is already changing how Internet applications
are constructed. These are firms like Silicon Valley's Centrata and
Kalepa, which are both working on ways to link computers together and
allow developers to write programs that capitalize on the
decentralized-computing model. But these firms still have to solve the
same technical problems that currently plague Napster: how do you
protect against viruses, or make sure the whole network isn't affected
when one PC crashes? "There are a host of other issues around P-to-P
that need to be addressed before it can work," says Vikram Kashyap of
VC firm Battery Ventures.
Like other venture firms, Battery is at ground zero when these kinds
of entrepreneurial hurricanes blow in off the coast. Partners say
they've seen 75 P-to-P business plans over the past six months, touted
by everyone from an ex-magician to an 18-year-old hacker. They are
weighing prospective businesses against the legal risks and are wary
of getting caught up in another fad, where VCs invest millions in a
series of painfully similar companies. As a result of that
skittishness, few P-to-P start-ups have received top-level venture
funding to date.
Then there's the mystery of how P-to-P firms will make money; in that
regard, many of the file-sharing start-ups are keeping one eye on
Napster's plans. After last week's hearing, CEO Hank Barry suggested
that the company might charge $4.95 a month and send 70 percent of
revenues to the record labels. But the service would have to strike a
deal with them first, and former Universal Studios chief Frank Biondi,
now a P-to-P investor, sees little chance of that: labels "want to
crush Napster like an egg," he says. Whether Napster can survive is an
open question. Its offspring will be watching. "
"TechWeb, Sept 23, 2000 pNA
Aimster, Cousin of Napster, Takes Root. (But creators say the new file
transfer program won't raise the copyright issues Napster
has.)(Company Business and Marketing) Charles Bermant.
Full Text: COPYRIGHT 2000 CMP Media, Inc. As Napster struggles,
another file transfer program is taking root as an adjunct to instant
messaging. But the crew behind it insists there will be no
Napster-like copyright trouble.
The new arrival is called Aimster, and the main difference between it
and Napster, according to Aimster chief Johnny Deep, is control. With
Napster, users share their files with the rest of the world. Aimster
narrows the scope and only allows sharing with a "buddy list" limited
to 150 names.
"Napster only lets you share files universally, and mainstream America
isn't real comfortable with that idea," Deep said. "We offer a more
private version that allows users to share files selectively, easily
and interactively."
Currently, Aimster (http://www.aimster.com) only works as a piggyback
to Instant Messenger from America Online (stock: AOL). At this point,
both companies are careful to say they have no agreement with the
other, although Deep admits he wouldn't mind having "some kind of
strategic alliance."
AOL's official reaction is more neutral: The company has issued a
"we're aware of the technology and we're looking into it" statement
for several weeks.
Since AOL can't prevent people from using Aimster, the program is much
like a party crasher or an unknown character tagging along with an
invited guest. In any case, Aimster's release of an ICQ-compatible
product, expected in the very near future, will expand the user base
and make it less likely that AOL will move against the program.
Deep said the loudest criticism so far has come from artists who feel
their work is being unfairly duplicated. Unlike Napster, he said, the
controllable aspect of Aimster will allow artists to govern who gets
to share files. Accordingly, they can use this as a way to generate
profits. Deep adds that the commercial version of Napster can be
configured to accommodate an unlimited user base.
Unlike the purely utilitarian interface supplied by instant messaging
programs, Aimster allows users to add and create graphical "skins"
that make it more compelling to use.
Dave Murphy, president of International Association of Information
Technology Trainers, Elkridge, Md., feels that such an enhanced
instant messaging capability will fit nicely into organizations. "A
lot of people like to use instant messaging to contact a secretary to
see if the conference room is free," he said. "If they ask the
question in person they get caught in unnecessary chitchat, and they
don't want to wait three minutes to get an answer through e-mail."
While many corporate users might favor Aimster's pretty interface,
Murphy doesn't feel they're quite ready for the file-transfer
capability. "Most people don't know what to do with a file when it's
sent to them," he said. "And they don't yet see the value in the
ability to send or receive files immediately." Or more to the point,
corporations really need this feature but don't know it yet.
Aimster is a private company that is being incubated through
Rensselaer Polytechnic Institute, Troy, N.Y.
2000 CMP Media Inc. "
"InternetWeek, August 14, 2000 p16
When Does Copying Become Illegal Use? -- Napster copyright battle may
impact text, video, software protection at other content sites.
(Industry Trend or Event) Ted Kemp.
Full Text: COPYRIGHT 2000 All rights reserved. No part of this
information may be reproduced, republished or redistributed without
the prior written consent of CMP Media, Inc. Forget whether Napster
downloads threaten to overrun your servers or hard drives. Networking
analysts and legal experts say the real impact of the ongoing legal
battle between Napster and the recording industry may be stepped-up
encryption of content or more draconian laws to prevent its copying
and distribution.
"This is an important case, with respect to not only audio but all
types of electronic [copyrighted] works," said Seth Ostrow, co-chair
of the intellectual property practice at Brown, Raysman, Millstein,
Felder & Steiner LLP, a firm specializing in Net legal issues.
Between now and Sept. 12, an appeals court will take written arguments
before deciding whether to reinstate an injunction that would shut
Napster down permanently. The original injunction, imposed July 26 by
the U.S. District Court in San Francisco, lasted only two days before
Napster got a reprieve from the 9th Circuit Court.
Nonetheless, the courts' decisions on the injunction have no legal
bearing on the merits of the larger suit brought by the Recording
Industry Association of America, which alleges that Napster commits
contributory copyright infringement by facilitating music piracy by
its 20 million users.
In its defense, Napster has cited the Audio Home Recording Act of
1992, which legalized the use of digital audio recording devices to
copy or distribute music. At issue is whether hard drives are digital
audio recording devices. In the past, the courts have said they are
not.
Napster further argued that its users should be able to copy music
based on "fair use." Copyright laws are designed to give content
producers temporary exclusive rights to their works so that they have
financial incentive to create works that eventually end up as part of
the public domain.
Exceptions are made for fair use, which says, for example, that a news
article that cites another article isn't a trademark violation. But
the RIAA argues that complete copying of copyrighted works is not fair
use.
However, a ruling in Napster's favor could affect copyright law on the
Net, which would in turn affect other content providers, lawyers said.
"It has impact down the line for other Net technologies," like video
or applications software, said intellectual property attorney Leonard
Rubin of law firm Gordon & Glickson LLC. "The yelling and screaming
has for the most part been [about] the concept of sharing music rather
than the law."
Content providers can defend themselves with encryption of new
content. Companies such as Macrovision Corp. make software designed to
prevent the copying of audio and video programs or computer software.
Emerging technologies, such as e-books, could especially benefit from
encryption, said Jim Penhume, Yankee Group director of media and
entertainment strategies.
But encryption can cause installation problems for the end user. And,
of course, encryption can't prevent the sharing of available material
or older technologies such as CDs.
Firms in the digital rights management space, such as Reciprocal and
Supertracks, handle content transactions for record companies and
music e-retailers. ASP Reciprocal, for example, processes and reports
online music financial transactions, and the company lets clients set
up business rules that determine how content can be shared.
"We think there will be increasing demand for these services as much
more content comes online and becomes licensed over the next several
years, regardless of what happens in the Napster proceedings," said
Larry Miller, president of the music division at Reciprocal. The
company plans to launch a film and video division before the end of
the third quarter.
Miller said music labels could conceivably use Reciprocal's service to
make a song available on Napster as a free promotional download to
consumers willing to identify themselves. Indeed, some industry
watchers have suggested the RIAA should find just such a way to work
with Napster. Online market research firm InsightExpress found that 75
percent of Napster users say the music service has encouraged them to
buy music from new artists or different music categories.
Regardless of how the case plays out, it almost certainly is not the
last battle content providers will eye nervously as the capabilities
of new Net technology collide with existing laws.
"U.S. copyright law probably will have to be changed to accommodate
all the Internet problems that occur now," Rubin said.
Whether that means loosening existing legal notions of copyright to
fit technology or trying to restrain technology to match current law
remains to be seen.
http://www.internetwk.com/
Copyright [copyright] 2000 CMP Media Inc. "
"The Economist (US), August 5, 2000 v356 i8182 p59
The music industry - Rewired for sound. (Napster copyright case)(Brief
Article)
Full Text: COPYRIGHT 2000 Economist Newspaper Ltd. SAN FRANCISCO
TALK about a rollercoaster. On July 26th an American judge had the
record industry gloating and college students fuming when she issued a
preliminary injunction to shut down Napster, the hugely popular online
service that lets users swap copyrighted music files in the MP3
format- -anonymously and free. Two days later the reactions were
reversed when an appeal court unexpectedly stayed the injunction until
it can hear the case.
For all the cheering and jeering, the outcome of the trial will not
matter much in the long run. Napster has said it wants to "usurp" the
record industry, which has been girding itself for a huge legal fight
that, say the experts, it would probably win. But any legal victory
would be hollow unless the record labels come up with attractive
online services of their own--and do so fast.
Napster's defence is rather far-fetched. Its users, the argument goes,
do not infringe copyright because they make only personal copies and
use the service in ways that count as "fair use", such as sampling. In
any case, Napster itself should not be held liable for any copyright
infringement--just as Internet service providers are not responsible
for illegal content on their network so long as they don't know about
it.
Marilyn Hall Patel, the judge in the Napster case, bought none of
this. For her, there is a big difference between making copies for
friends and making them available via Napster, where a music file can
be downloaded by millions of anonymous users. And since the
downloading of unauthorised copies on a massive scale is Napster's
raison d'etre, the firm should be liable for any infringements.
Although one might quibble with the details of Judge Patel's
injunction, it is hard to imagine any other court coming to a
radically different conclusion. Certainly, to do so would in effect
doom music copyright worldwide. Napster is growing faster than any
other Internet service. The firm predicts that, unchecked, it will
quadruple its users to more than 75m by the end of this year, meaning
the downloading of up to 100m music files a day.
The appeal court's decision to stay the injunction does not
necessarily mean that it disagrees with the order. Rather, it believes
the case has raised new legal questions which deserve examination
before the plug is pulled on Napster. The court intends to hear the
case as quickly as possible, probably in late September.
But whatever the courts decide, the problem posed by Napster's
underlying "peer to peer" technology--the institutionalised swapping
of files between PCs--will not go away. After the injunction against
Napster, many users simply switched to similar services run by
volunteers. And a whole new generation of services (Gnutella and
FreeNet, for instance) is going to be far harder to shut down than
Napster, because they operate without a central server.
Many in the industry are hoping that they can stop piracy at its
source: CDs. Since music on CDs is not encrypted, anybody with a PC
can copy songs as MP3 files. But the Secure Digital Music Initiative
(SDMI), a multi-industry forum working on standards to "copy-protect"
CDs and online music files, is way behind schedule. Only a few
manufacturers have actually implemented any security specifications
for portable players of music files. And existing SDMI-compliant
devices are cumbersome to use.
In any case, copy-protection alone will not answer the music
industry's prayers. In the past, the industry has bundled songs
consumers want with those they do not in albums. In future, it will no
longer be able to play such tricks. In order to get consumers to
accept some encryption, it will have to pay closer attention to how
people want to buy their music.
It is not yet clear what the best model for music is; but it is clear
that the record business needs to experiment with several. It may be
that consumers are willing to pay a monthly subscription if they are
allowed to download as much as they want and to get lots of
information about artists. Or Napster could mutate into a highly
efficient distribution channel for copy-protected music files.
The big labels seem to be grasping the idea that they must let a
thousand business models bloom. This week, for instance, Universal
started a trial to distribute copy-protected files that contain not
only music, but also enhanced multimedia content, including
photographs and lyrics. And EMI, which already allows consumers to
download albums and singles, announced that it will have an online
subscription service available by the end of September.
Perhaps the labels should also take a page out of Stephen King's book.
The novelist's experiment in self-publishing seems to be working. Last
week, he posted the first chapter of his new book "The Plant" on his
website, vowing that he would continue to write if enough readers paid
the $1 price for each chapter. In the first seven days, 152,000
downloaded the chapter; 93,000 of them have paid up and another 23,000
have promised to. Not that this is a new idea. Street musicians have
used this business model for centuries. If bystanders pitch in, they
continue to play. Otherwise the music stops. "
I hope this helps! If you need any clarification, please don't
hesitate to ask!
darrel-ga |
