Tags: law, metallica, music, napster, new-zealand, politics
By order of Chief US District Judge Marilyn Hall Patel, Napster is shut down. Earlier this morning, she signed an injunction to shut them down pending the outcome of their trial.
If you’re not familiar with Napster, or if you think you are, I’ll give you a run-down of what it is. Basically, it’s a program that allows users to download free music. The Music Industry claims that Napster is a “dangerous Internet rival that could short-circuit traditional music sales.”
Plain and simple, right?
In a word, No…
Not only is the whole Napster ordeal reason number one hundred and seventy-eight why people think Metallica suck, there’s also the fact that technically it’s only a Network. More specifically, it’s an Internet Relay Chat (IRC) Server not altogether unlike Undernet or DalNet that a lot of Internet users chat on. Instead of using an IRC-client however, there’s a front-end program that allows users to share files. Again, this is not altogether different than the DCC file servers and such available to IRC users, but whereas with standard IRC most people are chatting, the majority of Napster users are transferring files.
When one logs into Napster, the contents of a shared directory on your hard drive are made public to everyone logged into the server. Running the “Search” inside the program searches a database of all connected users and finds matching filenames in those shared directories and lists them.
Napster itself, as an entity, doesn’t have any of those files, which are Songs in this case. The users share them between one another.
Officially, Napster itself claims that they do not promote the use of their product for the illegal transfer of copyrighted or trademarked material. Music information on their website, despite what you’ve heard, is restricted to un-signed artists who opt to self-promote their music.
It’s been great. Finally, there was a way for un-signed musicians to promote themselves and make a few dollars without being raped by Music Industry thugs who care more about marketability factors and profitability rather than the Art of Music.
Basically what the Recording Industry Association of America (incorrectly referred to as the “Music Industry”) is attempting to do is overturn many former legal precedents set worldwide so they can make a quick dollar. The case is ludicrous, and could be easily overturned (with damages granted to Napster for their loss of Advertising revenues during the injunction period) if only their Lawyers would do some very basic legal research and urge the Honourable Patel to uphold the verdict of another Judge. No Judge likes to see their verdict overturned, especially by a lesser-experienced, un-impartial Judge with a mindset strictly adverse to the Spirit of Law.
The defence avenue that comes immediately to mind is BLAHBLAH (insert litigant here) vs. America Online (Internet Service Provider). In each of these cases, it was ruled that a content or service provider cannot be held liable for the actions of its users. Some AOL user had posted a web site in bad taste in their free space on AOL, someone was offended and tried to sue AOL instead of the person who did it.
In most cases, the content was actually illegal (either defamation, hate-crime related or boasting of illegal behaviour) and violated AOL’s Terms of Service, something that a simple e-mail to [email protected] could have taken care of it. But Lawyers, intent on getting as much money as they could rather than using a bit of common sense, saw the need for legal action such that a Precedent could be set and their other Lawyer-buddies could make even more money if the case was actually won.
(Ian C. Ballon, Esq. comes to mind — the man who attempted to sue a child a few years ago for the use of the domain name “gumby.org” claiming that regardless of whether it was the kid’s nickname, it was a registered trademark of Prema Toy Co. — as he claimed [on his Hong Kong partners’ site] that he lost at least one of these AOL cases. After writing a long volume about the verdict being wrong, he proceeded to draft revisions of standing laws and claimed [again on the Hong Kong site] to have submitted some to the series now dubbed the International Intellectual Property and Trademark Acts. I’m sure he’ll sue me for using his name here, actually. Common Sense and any interpretation of Law says, however, that even though I have, and even though I think he’s a wanking leech and a bottom feeder, he can’t sue me for Libel or Slander as what I have posted is A. truthful by information he or his colleagues have given, B. within the realm of public knowledge, and C. a matter of subjective opinion protected under an inherent right of Freedom of Speech.)
The bitch of it all is that there is a world-wide Common Sense which says that a manufacturer can’t held liable for damages caused by illicit use or misuse of their product. If your kid goes out tomorrow and overdoses on Viagra (strangely not uncommon), are you going to sue the manufacturer of Viagra? What if he/she shoots him/herself with your shotgun, are you going to sue the gun manufacturer?
What if your next door neighbour puts up a web page on Ihug claiming you’re a rapist? You’re using the ‘net to read this, so you know that you’d sue the neighbour, and that the provider can’t possibly police everything on their network.
What if someone with a Hotmail address e-mails you a Trojan that sends someone all of your business records and then deletes them from your machine? Of course, you can’t sue Hotmail. But what if that person started distributing your confidential information to people on auckland.nz.undernet.org? Would you try and get the server shut down?
Of course not.
You prosecute the offender, not the means by which they offend. It doesn’t take a barrister’s degree to figure that out.
But if things keep going the same way in the United States, look out. New Zealand has signed the same laws on Copyrights, Trademarks and Intellectual Property, and it might just turn into a mess here, too.
But if it should happen that the manufacturer of the Napster program is found liable for the illicit actions of its members and New Zealand follows suit, then I should bloody well be able to sue Clear Telecommunications for that loud, screaming bastard who kept calling me over and over with the wrong number in the middle of the night.