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The RIAA strikes back
The next stage of the copyright wars has begun: the RIAA has filed suit
against four university students alleging massive copyright infringement
and asking for tens of millions of dollars in damages. That's the sort of
action that can make a serious dent in an undergraduate student's beer
budget. But these cases have a wider significance which merits a look.
The four complaints (which can be found over here) share the same basic form and, indeed, much of the same language. The first claim is that the defendants are directly making copyrighted materials available on the net for copying. This act looks like a fairly strightforward copyright violation, so the RIAA - if it can prove its case - probably has a legitimate complaint there. Copyright is the law of the land, and it's important (the GPL relies on copyright law). If you directly violate copyrights, you should not be too surprised if the owners of those copyrights decide they want to have a talk with you. But the RIAA does not (yet) go after every student who makes a few MP3 files available. These defendants were chosen because, in each case, they published an index of files available on a campus network. Through this act, according to the RIAA:
Defendant has hijacked an academic computer network and installed
on it a marketplace for copyright piracy that is used by others to
copy and distribute music illegally.... Defendant has taken a
network created for higher learning and academic pursuits and
converted it into an emporium of music piracy where copyright
infringement is simplified down to the click of a computer mouse.
In all four cases, the actual distribution of files in this "emporium of music piracy" was performed by others. The defendants just created an index to enable others to find those files. In at least one case, the index included all publicly-available files, not just music files. The defendants, in other words, are being sued for creating a search engine. This is the point where the RIAA has crossed the line. Rather than go after people who are actually violating copyrights, they are launching million-dollar lawsuits to shut down indexing services. Once again, linking becomes a crime. This is a direct attack on basic freedoms: it is no longer possible to make an index of files available on a network, since some of them might just be copyrighted. No cost is too high, it seems, to save the recording industry from the modern world. The cost is too high, however. The free software community (and much of the rest of the world) depends on freedom of information flow to function. Every time we are told that we cannot make links, or create an index, or release a bit of scary code our freedoms are reduced and our community functions a little less well. You don't have to be a music trader to feel threatened by that. (See also: Joseph Barillari's analysis of the complaint against Dan Peng). (Log in to post comments)
The RIAA strikes back Posted Apr 10, 2003 5:09 UTC (Thu) by ekj (subscriber, #1524) [Link] Copyright is the law of the land, and it's important (the GPL relies on copyright law).This is correct, but the GPL can be argued to try hard to shift the balance of copyrigth back in favour of the users and not only in favour of a few giant copyrigth-holding companies. If Copyrigth where to be abolished tomorow free software would suffer a lot less than proprietary software, indeed software under the BSD-license is already pretty close to being as it would be without copyrigth.
The RIAA strikes back Posted Apr 10, 2003 8:43 UTC (Thu) by DaveK (subscriber, #2531) [Link] The defendants just created an index to enable others to find those files.In that case the authors/maintainers of the following ought to watch out, especially if their code is used on large campus type networks
And does it stop there? What about the likes of Google who have probably, in their crawls, amassed quite a large index of such files? Furthermore, what is a filesystem except an index of all files available on a given system and where to find the raw data?
The RIAA strikes back Posted Apr 10, 2003 11:13 UTC (Thu) by rknop (guest, #66) [Link] Furthermore, what is a filesystem except an index of all files available on a given system and where to find the raw data? Unfortunately, there is zero hope that the complete and total technological lackwits we have in our legislatures and judiciaries will understand this point. All they will see is a great leagalistic argument about the sanctity of intellectual property and how nothing shows that that needs to be violated. Soon, most of the very basic computer tools we take for granted will be outlawed, and all that will be legal is highly closed and proprietary computer systems produced in accordance with very strict laws, and monitored by the government and watchdog groups from the entertainment industry. (I'm referring to the latest DMCA lawsuit news here. I have absolutely no faith in the people making and interpreting the laws in our country, and feel very discouraged. Things are going to get a lot worse before they get better, In a few decades, a bunch of the judges are going to realize that they set up the conditions necessary for a technocratic dictatorship, and THEN they will feel stupid, but until then they will stay in love with the sanctity of intellectual property. My only hope is that some other country maintains perspective on the matter, and keeps sane IP laws that allow it to pull way ahead of the USA while the USA shackles itself with "IP protection". Then, there may emerge a new superpower which really does believe in freedom while the USA flushes itself down the toilet; this other country, without the self-imposed manacles that the USA is building for itself, will be able to pull out way ahead and leave the USA in the dust. This sounds really alarmist and stupid, I agree, but on the other hand, I would assert that anything but an alarmist reaction to judgements passed down on the DMCA is naive.) -Rob
The RIAA strikes back Posted Apr 10, 2003 12:49 UTC (Thu) by beejaybee (guest, #1581) [Link] 'Unfortunately, there is zero hope that the complete and total technological lackwits we have in our legislatures and judiciaries will understand this point. All they will see is a great leagalistic argument about the sanctity of intellectual property and how nothing shows that that needs to be violated.'What makes you think that your legislatures are any less enlightened than those some of the rest of us find ourselves burdened with? Here in the region of the United States of Europe formerly known as the United Kingdom, we all _know_ that the European Commission (equivalent to the Federal Government) is a load of unelected, has-been politicians operating in the pay of the Mafia, but we're totally powerless to do anything about it. You wouldn't like to divert some of that surplus army hardware from Baghdad to Brussels, would you? 'My only hope is that some other country maintains perspective on the matter, and keeps sane IP laws that allow it to pull way ahead of the USA while the USA shackles itself with "IP protection"' Yes, I hope that, too. Trouble is, the USA would probably squash them by threat of, or actual, military action before they could become a threat to the hegemony. I rather suspect that, like the former Iraqi administration, we're just going to have to keep digging bunkers, in the hope that some won't get busted.
The RIAA strikes back Posted Apr 10, 2003 13:40 UTC (Thu) by rknop (guest, #66) [Link] Yes, I hope that, too. Trouble is, the USA would probably squash them by threat of, or actual, military action before they could become a threat to the hegemony. To be fair, you would have to admit that no rational person would claim that Hussain's regime in Iraq was more free than the USA. When the world gets to the point where the USA is using its military power to quash societies that are more free than itself, then we're really in serious deep trouble. I'm not arguing one way or other in favor of the Iraq war, but you have to admit that that is a very different matter from the USA going into (say) France and replacing the regime because France didn't have restrictive enough IP laws. It's not impossible, but it's a real stretch to draw a direct line from Iraq to that. -Rob
The RIAA strikes back Posted Apr 11, 2003 1:16 UTC (Fri) by proski (subscriber, #104) [Link] When the world gets to the point where the USA is using its military power to quash societies that are more free than itself, then we're really in serious deep trouble.I disagree. Two points:
Just because it's not happening, it doesn't mean we are not in a big trouble already.
The RIAA strikes back Posted Apr 11, 2003 13:28 UTC (Fri) by beejaybee (guest, #1581) [Link] Here's one way in which the people of Iraq living under the yoke of Saddam Hussein's evil dictatorship were more free than those living in the United States of America: they could trade in digital music and video files without worrying about payment of copyright fees, since they used to be outside the reach of RIAA & MPAA.Sure they're going to be better off under the new administration, but becoming a part of the so-called "free world" does involve everyone in the loss of some freedoms!
The RIAA strikes back Posted Apr 10, 2003 15:58 UTC (Thu) by NAR (subscriber, #1313) [Link] Furthermore, what is a filesystem except an index of all files available on a given system and where to find the raw data?
I'd love to see RIAA to sue IBM and Microsoft because of their filesystems and consequently losing in the court...
The RIAA strikes back Posted Apr 10, 2003 21:28 UTC (Thu) by brouhaha (subscriber, #1698) [Link] Assuming the court applies the law correctly, the RIAA doesn't have a leg to stand on. The Audio Home Recording Act of 1992 specifically provides in section 1008:No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings."Under this title" referes to Title 17 of the United States Code, "Copyrights". In this case, the disks on the computers attached to the Internet are digital audio recording media, and the students engaged in noncommercial use of that media. Thus by bringing action, the RIAA is in violation of the law. Unless the RIAA claims that the students were engaging in commercial use?
Re: The RIAA strikes back Posted Apr 11, 2003 18:35 UTC (Fri) by gleef (guest, #1004) [Link] "based on the noncommercial use ... of such a device or medum for making digital musical recordings" This was written to say you can't sue someone for making or selling a digital tape recorder. More recent applications would be you can't sue someone for making or selling a computer, or CD ripping software. It says nothing about suing someone for distribution. At these schools copyrighted music is being distributed without authorization of the copyright holder. Whether or not you consider it ethical, it is almost certainly illegal (the Home Recording Act covers making copies for people you know, and I doubt stretching it to include fellow students you can't identify will hold up in court). The boneheaded parts of this suit don't include the claim of direct copyright infringement, it's the contributory infringement claim, specifically:
Re: The RIAA strikes back Posted Apr 11, 2003 21:25 UTC (Fri) by brouhaha (subscriber, #1698) [Link] Um, which part of "or based on the noncommercial use by a consumer of such a device or medium" don't you understand?It says nothing about suing someone for distribution.And what are the grounds for suing someone for distribution? Copyright infringement. Which is clearly part of title 17, and thus covered by the restriction of section 1008. Even if the suit is over contributory infringement, section 1008 says "No action may be brought under this title...". It doesn't say "No action for direct infringement...".
Re: The RIAA strikes back Posted Apr 11, 2003 21:31 UTC (Fri) by brouhaha (subscriber, #1698) [Link] (the Home Recording Act covers making copies for people you know, and I doubt stretching it to include fellow students you can't identify will hold up in court).Where in the AHRA does it say anything about "people you know"? Answer: it doesn't. Thus section 1008 does not distinguish between people you know and random strangers. It does distinguish between commercial and noncommercial copying. Thus the only way section 1008 doesn't apply in this case is if the copying was commercial, or by someone other than a consumer. The consumer limitation means that the RIAA isn't prevented by section 1008 from bringing action against a school or an ISP. But they'd have a hard time making the case that a student isn't a consumer.
Bad GPL Reasoning Posted Apr 11, 2003 4:03 UTC (Fri) by bworth-lwn (subscriber, #4602) [Link] The continuing production of comments to the effect that we should respect copyright because "the GPL relies/depends-on/is-based-on copyright" is increasingly infuriating. It is especially disappointing to see them uttered by persons for whom I have great general respect, because it displays a fundamental misunderstanding of the motivation and positioning of the GPL.This statement is true: "the GPL can only exist in the presence of copyright.". It is, however, irrelevant as an argument for supporting respect for copyright. The _goal_ of the GPL, as inherited from its creator, is to make code free. Copyright is a mechanism, perhaps the primary mechanism, by which code is made non-free. In the absence of mechanisms for making code non-free, the goal that motivated the construction of the GPL is already met and the GPL becomes irrelevant. To put it teleologically: "The GPL wants to not exist." It will cease to exist in precisely that environment where it is not needed: in the absence of copyright. You may have other reasons for thinking that copyright, in some form, is important, necessary, or even good; but please stop using the ill-conceived reason that copyright is important because it provides the structures required by the GPL. This is a complete confusion of mechanisms and goals. I apologize for the tone of exasperation, but I am _certain_ that there is no cerebral barrier involved in understanding this. Copyright is not a fundamental structure of any universe and a world without copyright is perfectly self-consistent. Picture such a copyright-free world and ask the question: "What would I be trying to protect with the GPL." Not-as-respectfully-as-he-usually-tries-to-be,
Bad GPL Reasoning Posted Apr 11, 2003 4:30 UTC (Fri) by bworth-lwn (subscriber, #4602) [Link] OK, I accidentally took my viagra instead of my valium. My arguments with respect to copyright probably become more bulletproof if we get rid of the whole IP framework, including patents et al.Here are the goals of the GPL as described by RMS himself: Some may wish to pursue threads such as: what valuable side-effects unintended by the GPL creator have we also seen?, and might these positive side-effects not have manifested in a copyright-free environment. (IANAL. I may occasionally say copyright where I should be referring to some related IP concept.) Steve Butterworth
The GPL's Rationale Posted Apr 12, 2003 22:32 UTC (Sat) by socket (guest, #43) [Link] It may seem strange that the GPL works the way it does, but the key is in distinguishing between the different senses of the word "Free" in the context of software. This results in the primary philosophical difference between the GPL and BSD camps.You say: "In the absence of copyright, software has no owner and therefore no legal standing to prevent the exercise of the freedoms above." The GPL requires that *if* you redistribute the software, you *must* include source code. If you tweak a GPL'd program and never give the changes to anyone else, you don't need to worry about this requirement. The user of copyrighted software is very limited in the ways in which they may legally redistribute that software. The GPL allows exceptions to that, but only under certain circumstances: to redistribute the software, you MUST agree with the terms of the GPL, or the default copyright case forbids you from copying it. The reason why the GPL works in tandem with copyright is to prevent someone from taking Free code and making it Non-free. If the GPL didn't exist, and copyright didn't exist, imagine this scenario: You've written a program, and offered it up on a web/ftp site for general use, along with the source code. Someone else downloads your program, makes some changes, and offers it on another site, *without* the source. You contact him, asking for the changes, and he thumbs his nose at you. There's nothing you can do - nothing prevents him, or anyone else, from making your software non-free. If your software is GPLed and copyright exists, on the other hand, the situation changes: you contact him, and he thumbs his nose at you. What can you do? He didn't agree with the GPL, and those were the terms you offered them under. Even if he could convincingly argue that he didn't know the software was GPLed, you file a suit for copyright infringement. The only terms you allowed redistribution under were those in the GPL, lacking those, normal copyright laws apply and now you have a LART. You might argue that there wouldn't be any incentive to do make free software non-free, lacking copyright, but people have been known to make irrational decisions before. Indeed, I can't think of a good reason to do that kind of thing if you can't also restrict the availability of software to paid copies, which would need copyright. Without copyright, the primary incentive to write software is to scratch your own itch. You said, "There's no owner" if copyright doesn't exist, and that may be true in some sense of the word 'owner,' but the *creator* of a work *does* exist, and non-free software would probably work much the same way trade secrets do now. If the code gets out, your outta luck, but as long as you can keep your code restricted, there's no difference. In a world without copyright, non-free software would be that which locks its code away, and free software would be that which makes its code available. Back to your argument: "In the absence of copyright, software has no owner and therefore no legal standing to prevent the exercise of the freedoms above." In fact, in the abscence of copyright, free software would have no legal means of *preventing* others from *restricting* the freedoms that the author of free software wishes to promote. This is, in fact, the difference between a fan of the BSD license and the GPL. The GPL *needs* the restrictions of copyright to prevent others from restricting the very freedoms you *want* to be widely available. The BSD license, on the other hand, doesn't *care* if someone decides to restrict users' freedoms further than the original creator indented. What does this boil down to? Non-Free software can exist without copyright. Free software can exist without copyright. Code can still be kept hidden without copyright. Here's the catch: Lacking copyright, someone can turn free software into non-free. Stallman's Freedoms 1, 2 and 3 depend on the *threat of copyright* to prevent that from happening. Does this matter to you? If so, you're a fan of the GPL. If not, you'll be happier with the BSD licenses. (I'm still undecided on the ethical value of patents, though I'm certain I take a less friendly view of patents than I do of copyright.) --Chris
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