[rumori] Re: pho: Napster

From: Don Joyce (djATwebbnet.com)
Date: Wed Feb 14 2001 - 12:13:25 PST

I wonder... I can't be the only one who sees all this as mainly doing one
thing and one thing only - adding way too much baggage to music, itself.
The arrogant and self serving psychological obsession to control and
enforce per-use compensation for music in the digital domain, when that is
always the last thing on the mind of those who are in the habit of just
enjoying it for its own sake, is creating an oppressive environment for the
digital version that will soon be MUCH WORSE than what the same business
motivations have done in the material world. But comparitively, that always
necessary trip home from the record store is actually a BIG help in
forgetting you just paid for it. We don't want to think of paying for music
while we're listening to it. It just don't work somehow. The musical
experience is somehow extremely divorced from monetary considerations,
bless its heart. Frankly, I'm losing interest in trying to accomodate music
within digital business models that detract from it, I'd rather just go to
a store...

There will be too much minority control by music's corporate parasites over
all of us, too much intrusion into our personal listening habits, too many
preventive controls over what we individually choose to do with music, too
complicated by everpresent "safeguards", too frustrating to get to the one
and only object of your visit, too many glitches and high pitched
artifacts, too many aspects of all this which proposes to use music as a
carrot for basically tracking and policing and spying on the user to
distraction, (always called either 'added value" or forms of "protection"
by those who dream them up) too much mistrust and disrespect for humanity
surrounding it, too many endless lawsuits over lawsuits resulting in
lawsuits, laborynthian legal maneuvering around it all based on purely
technical and semantic definitions so unlike the languages of music,
itself, and so distinctly anti-art on the face of it that it's depressing.
Sorry, it's all just generally depressing, completely uninspired,
completely sleezy. Your customers have NO desire to become stuck in the
swamp of unresolved control you are wasting all your days and mental powers
on. Many would shun you if they could in the physical domain for such
spiritually careless attachments to music there, but they certainly will on
the Net where it's at last going to be possible to actually do so and still
get what they want from you.

This is what always happens when commercial concerns take over and surpass
the reasons for the art they are selling (which many of you I am now
convinced will never learn has nothing to do with making money, that being
no more than a POSSIBLE byproduct at best.) It has also happened to music
in the material world - BUT THIS IS EVEN WORSE! I don't think it's up to
music to support all this crap covered digital baggage that has so little
to do with why music is made or what it's for. Music will go on with or
without it, but if this continues, and of course it will because those "in
charge" of music simply will not modify their dollar signed view of this
assumed golden opportunity, it will only succeed in decreasing music's life
and viability on the Net, suppress diversity, reinstate the
star-in-the-shotgun system of economic viability which is a VERY
destructive and self-inhibiting way to support art and artists. It's doing
it now. Watch music, much more concerned with itself than you will ever be,
dribble away under your sticky fingers and become primarily free and/or
illegal traffic there, and actually gain new purpose in doing so!

There is no interesting future for everything music wants to be there under
these attempts at iron grip conditions which are totally based on passed
technology, passed experience, and passed expectations from unrelated
per-unit "markets." Once more for the Hell of it - If Net music does not
settle down and occupy some kind of free use and exchange staus EQUAL to
the status it now occupies on radio, with ALL hope of individually
controled, per unit transactions completely abandoned, users will
inevitably prefer the lesser but better sounding evils elsewhere, or become
criminal bypassers in the unremovable no-man's land of the Net, in part,
because that will be MUCH MORE FUN! You are all underestimating the
irresistable attractions of fun, something music itself never does, and
something all this tortured legal and techgnological back-biting never
seems interested in at all. I'm so puking tired of all these
self-important, music officials, representing no one but their non-musical
employers in reality, throwing in some reference to the joys of music as
they ignorantly proceed to remove them for everyone by force of law.
Hillory never thought of this, I'm sure, but you should. The ONLY way to
compete with free is to become free yourself. THEN you CAN compete!

Music IS about fun, (even for Eminem I bet!) and music is the helpless,
vulnerable loser in all this, today wearing a digital expression that could
only be described as pained, compromised, and apprehensive, and the
corporate music business is typically self destructive (taking music with
it as usual) to be so oblivious as to how their enclosing new-fangled
digital baggage will effect the basic, fun motivated integrity of its
contents for everyone, when a more generous, light-weight, non-intrusive
approach would invite so much more musical traveling and all the money for
everyone all along the way that that always produces. The net is
essentially a form of self-directed electronic tourism. But unlike the
physical world, it is in everyone's interest, (even commerce's though they
obviously cannot believe this for some reason I don't understand since
there's plenty of evidence staring them in the face,) it is in everyone's
have it both ways - you can't get more fun-loving traffic by doing
everything you can think of to make your attraction less fun. Getting music
on the Net will soon have all the charm of getting a license at the DMV.
Simply listening to music found there has already become MORALLY suspect
fer Chrissakes! The means are killing the end.

The last word is RADIO. But here's a few more regarding it: Simple,
undemanding, fun (well, it used to be), an experience hardly ever referred
to as immoral, used by everyone all the time, and profitable without ever
once selling one iota of its IP contents to its listeners directly. Radio
compensates the creators of its content with statistics based only on what
leaves the station, and doesn't worry at all about how its listeners may or
may not be collecting broadcast material for their own use because the
existing compensation plus the fringe benefits to content creators IS
ENOUGH! (I know, it's NEVER enough friends, but I don't see everyone now
trying to change radio as they are now so desparately trying to change the
Net, it IS enough.) The Net can operate in exactly the same way and IT
DOESN'T MATTER that the Net allows more specific and convenient collecting
of free stuff. That's what it's GOOD FOR, dummy! Generosity will always
produce more, not less interest throughout the many other paying mediums
and venues which music will always occupy. The Net, like radio, will remain
only part of music's world, but it will free Net music, itself, from this
digital morass of art smothering embarrassments.


>A few thoughts about the case. Forgive redundancies--there's only so much
>original thinking, ya know.
>A. Napster's Options
>1. Request en banc hearing. Basically ask all judges of 9th Circuit to
>rehear the appeal. This is discretionary for the judges to take. My gut:
>they won't take it, but if they do, that decision will affirm 3 judge panel
>decision. (Winners at panel level have advantage b/c rest of judges rely on
>original decision makers to inform them about case, esp in case where
>decision unanimous--no dissenting judge to muck up the picture). Napster's
>risk--if it loses en banc, it has an adverse decision rendered by the whole
>damn circuit, not just a panel, against it.
>2. Napster can't appeal to Supreme Court until it gets a definitive ruling
>out of the 9th Circuit. Although time has passed and judges/justices have
>remember Betamax
>came out of 9th Circuit. If case goes to Supremes, look for Napster to pick
>panel's legal discussion of fair use--I still think its best shot is to have
>Supremes decide that home users' use is noninfringing. Napster should set
>this up by establishing as full a record as possible at district court (if
>allowed) about positive effects service has on record sales. Effect on
>digital distribution efforts of labels a different story (see below)
>3. Battles to fight at the district court hearing:
> a. Court made distinction b/w Napster's conduct and its architecture,
>putting burden on copyright owners to list all their holdings. Considering
>the fiasco that almost (did?) developed in the UMG/MP3 case, watch for
>Napster to insist on very detailed information--force labels and publishers
>to make full, detailed, (public) disclosure of all information regarding
>registrations. If not wrapped with a nondisclosure, this will be an
>goldmine even if it doesn't do Jack for Napster in court.
> b. Perhaps Napster will insist on arguing it can't police the system in
>the way the 9th Circuit asserted it can. I can't see the distinction b/w
>policing files vs. file names making much practical difference. If I'm
>looking for "Shattered" and you rename it "Broken" to keep it on Napster,
>I'm never going to find it. (Unless we're in a buddy group or similar
>smaller circle and we can IM each other about the names or have some Pig
>Latin code or something. THAT could get interesting--more like AIMSTER)
> c. Court left door open for DMCA arguments--look for Napster to try to
>develop factual record re: 1) Napster as ISP; 2) Sufficiency of required
>notice (recent 4th circuit case says "substantial compliance" is
>sufficient--see my pho post from last week); 3) Section 512 compliance
> d. A bit of room re: defense of "legal misuse". Court noted most cases
>here deal with "unduly restrictive licensing". Look for Napster to develop
>record that it tried to license on fair terms but was refused--perhaps
>they'll hold up the BeCG deal
>as reasonable and try to knock out the other labels.
>e. Don't forget about damages, which could be huge
>f. Legislative options--Napster's recent hires indicate Hill action is part
>of the strategy. But here's
>the simple reason I don't think they'll make any headway: It's one thing to
>make fine legal arguments,
>to use Napster anonymously, to have your own personal indignation about
>violations of your "rights".
>I'm no political/lobbying expert, but how many Napster users are willing to
>look a legislator in the eye
>and argue passionately about their right to have unfettered access to all
>the world's music without paying
>a dime for it? (I know, it's the lobbyist that actually gets it done, but
> Perhaps I make too much about the distinction b/w communicating over
>computers vs. in
>person. Whatever problems RIAA/labels have, they've definitely got the
>better of the easily digestible moral
>soundbytes in this fight--I think so long as they can demonstrate some
>tangible progress towards fullfilling
>the promise of the DMCA (getting music out to more people in different
>ways), they're safe from legislative
>B. Effect on Digital Market
>1. Decision unabashedly pro copyright owner on this point. In discussing
>"effect on market" prong of fair use defense, court didn't even discuss CD
>sales, just talked about potential effect on labels' digital distribution
>efforts. And language like this: "Market power doesn't impose an obligation
>to license the use of (copyright owner's) property." That from the DOJ
>Antitrust guidelines on Licensing--yikes. And: "Lack of harm to an
>market cannot deprive copyright holder of right to develop and alternative
>market for the works." Translation: even if Napster throws up a bunch of
>evidence that its service HELPS CD sales, it still loses b/c of the effect
>on labels' digital distribution efforts. 9th Circuit to labels: "Y'all
>take your time mucking
>around with digital distribtuion efforts, b/c we'll protect you until you
>get it right or decide
>to ask for help." They might as well have had Ms. Rosen write those parts
>of the opinion, as
>they perfectly track her statements regarding tech companies "sense of
>entitlement" with
>respect to licensing. This might be the most significant point of the
>decision, and a possible point
>of Supreme Court argument--perhaps tilts balance of promoting public good
>vs. protecting
>copyright owners too far towards latter.
>2. More language on this point: "Increased sales of works b/c of
>unauthorized use should not deprive copyright owner of right to license
>(elsewhere)". Same point as above--it seems that no matter what evidence
>Napster puts on that shows increased CD sales, it will still lose b/c of
>effect on labels' digital distribution market.
>C. General comments
> 1. What a slam dunk. Unbelievable amount of pro-copyright owner
>language, esp. re: control. Court unfazed by
>tech whiz-bang: ("Defendants infringement is clear, and the mere fact it was
>clothed in the exotic webbing of the internet does not disguise its
>illegality"--from UMG v. MP3 case)
>2. Question for the court--what about the publishers and song
>compositions? Argument about digital distribution efforts doesn't apply to
>them? Many places in opinion where distinction b/w circle P and C lost.
>For instance, discussion of "sampling" in fair use discussion. Court says
>record supports finding that free promotional downloads are highly regulated
>by labels and they collect royalties for song samples available at internet
>retail sites (a pho point of contention among webcasters, I believe b/c the
>same is not true of regular retail stores). What about the publishers
>is suing UMG for "lack of regulation" regarding its members' compositions.
>3. Betamax case went for Sony b/c content owners didn't do a good enough
>job at district court level supporting their case factually. It appears
>that they have learned their lesson well.
>4. Court left room with AHRA and DMCA. AHRA--summarily dismissed,
>therefore more room for Supremes to find error; DMCA--room for Napster to
>develop factual record and then push legal argument, as noted. Also, a bit
>of legal room re: defense of copyright misuse, as noted.
>5. Argument about inapplicability of Sony and Rio is persuasive, I think,
>but pretty short. If Supremes don't agree with premise (i.e. cases don't
>apply b/c didn't involve wholesale distribution), door may be open.
>Discussion of distinction b/w architechture and conduct was simply
>discussion of difference b/w VCR (it's hardware that we sell and then have
>no further control over) vs. Napster (it's software that allows us constant
>ongoing relationship with the user). Ongoing relationship is fulcrum that
>allowed court to find contributory/vicarious infringement.
>6. Court picked up on Parker's email, Napster enforcing its IP rights
>elsewhere (tshirts), Napster executives having record company experience and
>downloading copyrighted songs themselves. You can run but you can't hide.
>7. Ms. Rosen's statement yesterday about a business model built on
>infringement being
>both legally and morally wrong. I agree, but doesn't injecting moral
>rights/wrongs open the door
>to a discussion about the moral right/wrongness of RIAA's members' business
>practices, esp. re:
>older artists?
>Duff, Esq.
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