From www.clearstatic.org:

Is downloading copyrighted music tantamount to stealing? The PBS news program Newshour hosted a debate with Lawrence Lessig, an expert on Internet law from Stanford University's Law School, and Matt Oppenheim, Senior Vice President of Business and Legal Affairs for the RIAA where these issues are discussed.

Read more at http://www.clearstatic.org/node/view/123

Notice how almost all the questioners (except for one) were critical of the recording industry, or at least critical of the fact that the recording industry isn't letting people do what they thought they could take for granted.

The computer-literate public's on our side - it's the vast silent apathetic group that doesn't know what a computer is that we have to reach next.

-- Funky.

And Oppenheim doesn't answer any of the questions.

It WOULD make sense if it were some sort of live broadcast, where viewers couldn't just scroll up and see how it doesn't answer the original question, but most people will see right through it here.

Especially in comparison with Laurence's stand that the answer to many of the question is an unequivicable "Yes." or "No."

I wish I could give Oppenheim a piece of my mind - his answers to my comment in particular were insulting:

"The record industry has been hit very hard in the last few years as a result of illegal downloading and piracy.

In 2002, unit sales were down about 11 percent.
In 2001, unit sales were down about 10 percent.
In 2000, unit sales were down seven percent.

During that same period, illegal Internet downloading has skyrocketed... That illegal downloading is decreasing sales is probably not a surprise to anyone. "

Well, that has nothing to do with my question, but yeah, it comes as a surprise to me, considering that we're in a recession AND that even though sales were down, so were new CD release, so much so that for the three years you mentioned, sales per-title were actually increasing.

"Your claim that artists are being cheated out of their revenue is more of a popular myth than anything else. The vast majority of musicians are dying to get contracts with record companies."

I disagree, Bob. Self-publishing is much more viable than before, and promotion is much cheaper, due to, among other things, file-sharing. So why would one want to sign a contract?

"The vast majority of artists who have contracts with the record companies have great relationships with their labels. While there have been a handful (and it has been a very small handful) of cases where artists have accused record companies of not abiding by the terms of their contracts, those disputes, like any contractual dispute, are usually worked out by the parties or by courts. "

I would put this under another bald-faced lie. Since the contract can be held over the artist's head, few are in a position to be able to sue for royalties due them. Even if you win one court case, the record company can simply choose not to put out any of your own albums - you wouldn't even be able to self-publish, destroying livelihood.

"In any event, are you suggesting that a royalty dispute between an artist and a label is justification for stealing from both of them? Would you feel free to shoplift a CD from a record store based on that logic?"

Well, first of all, using that logic to shoplift is absurd - I wouldn't shoplift because it deprives the record store, which has actually PAID money to have the product to sell, unlike the labels, who just STEAL the music from artists.

In that respect, I find copying from the internet to be no more immoral than stealing from a thief -- less so, because the thief still has his ill-gotten goods.

Sorry, I know I'm preaching to the choir, but his answers cheesed me off. I took it as personal disrespect for me and my question.

You can. I found this in an old posting on the web.
moppenheim@riaa.com

Don't know if it still works but it's worth a try.

Joe Cotellese
www.clearstatic.org

Does anyone know of any other debates by Lawrence Lessig?

hats off to everyone who put the numbers in our hands. zeidmann(sp) being one, but there have been numerous others. If it wasn't for educated, rational people doing their research and sharing their outrage in the form of numbers and stats (re: funksaws replie)written in terms anyone NOT in "the biz" (like me), most of us here at dmusic and boycott wouldn't have been able to pick apart this show.
I have ALWAYS held the position that it's education and strength in numbers (pun intended *smirk*) that's going to see this fight through, not guerilla tactics like spoofing and hacking.. funny tho they might be.
ttmmm

I particularly like the comment from the PBS site that says to contact the RIAA if you're having a distribution problem.

Great premise -- total bullshit.

I've been writing to the RIAA since October, initially to report actual pirates on eBay, then to complain about the CD-R restrictions at eBay and Yahoo, then to accuse them of antitrust.

They have NEVER responded to ANYTHING, no matter what the content, tone or attitude.

It's just more lies.

"In any event, are you suggesting that a royalty dispute between an artist and a label is justification for stealing from both of them? Would you feel free to shoplift a CD from a record store based on that logic?"

Playing the analogy game. Wouldn't a better one be - "Would you feel free to walk into the studio and offer to distribute the artists' work at a fraction of the cost, offering to demonstrate the process en masse if they can't figure it out for themselves?" Put the buggywhip down folks.

(Er, I'm a little cranky today.)

I wrote to the RIAA once. I was asking for more information on an old story I found in their news archives. Amazingly I actually got a reply from a human. Ok, probably a very low secretary. But still, someone read it. They wern't very helpful through, just restated the facts in the (one-paragraph) archived story. Either they dont keep more detailed records, they dont let secretaries see them or I just got a lazy one. Probably all of the above.

An interesting find. Both the alleged and the prosecutor be damned.

-----

Kazaa, Morpheus, MusicCity, etc.
CONFIDENTIAL/ATTORNEY WORK PRODUCT
  PRIVILEGED & CONFIDENTIAL/ATTORNEY WORK PRODUCT

We have distributed various legal and technical memoranda that describe the
KaZaA network and the potential legal claims against the entities offering this
peer-to-peer service. This memorandum seeks to consolidate our current learning
into a single document. Accordingly, detailed below are: (a) a brief overview
of the relevant entities and the KaZaA network architecture; (b) the facts
supporting our legal claims; and (c) a going forward strategy recommendation.


I. Overview of Entities and Architecture

FastTrack is the Netherlands based software company that developed the software
code library used to create the KaZaA peer-to-peer networks. KaZaA was the
first application to use the FastTrack code. FastTrack later licensed its code
to MusicCity (MusicCity dubbed its system Morpheus) and Grockster. The
principals behind FastTrack are Niklas Zennstrom and Janis Friis- - Two young
technology developers who are primarily interested in the development of their
technology and who have privately funded their operation. MusicCity is being
run by Steve Griffin, but with heavy influence by Timberline Venture Partners,
the independently managed Northwest Affiliate of Draper Fisher Jurvetson.
Timberline owns 65% of MusicCity and is very involved in running the company.

The FastTrack network designates (perhaps automatically) certain peers - more
powerful computers with high-band-width connections - as "supernodes." [because
of the system’s encrypted communication, we are unable to determine how
supernodes are designated]. Several hundred "ordinary" peers connect to any one
supernode. A supernode also connects to other supernodes. [because of the
system’s encrypted communication, we are unable to determine how one supernode
knows how to locate other supernodes]. Vidius found that when one of its
machines was in supernode status, it was connected to approximately 25 other
supernodes. The supernode functions in Napster-like fashion as a local search
hub, building an index of the files being shared by each peer connected to it,
and pro-cessing search requests on behalf of those peers. Supernode queries
other supernodes to fulfill a search request, but does not query peers serviced
by other supernodes (such a step is unnecessary because the supernodes index
all files available among the peers they service). The effect of this
architecture is to create a relatively small peer-to-peer network of
supernodes, each of which in turn functions as a miniature central server for
hundreds of other users. As in Napster and Gnutella, file transfers in the
FastTrack system are purely peer-to-peer, and involve neither the central
server nor any supernode.

Significantly, the FastTrack system encrypts all communications (a) between a
peer and the log-in server, (b) between a peer and its supernode, (c) between a
supernode and the central servers, and (d) between supernodes [we do not know
the nature of the encryption]. However, peer-to-peer com-muni-cations
associated with downloading a file are unencrypted. Presumably, the encryption
scheme was created, and is controlled, by the developer of the application -
FastTrack. By encrypting the com-munication, the developer has ensured that the
network remains "closed" and accessible only through the KaZaA, Morpheus, or
Grokster applications (and any future licensees of the FastTrack tech-nology).

KaZaA, MusicCity, and Grokster each operate a central log-in server. The
addresses of these servers are hard-coded into the application. At log-in, the
peer sends one packet of data to the server, and the server returns two
packets. The transmissions presumably involve log-in information from the peer
and acknowledgement and confirmation from the server. This function appears to
be similar for each of the three entities. In addition, Vidius reports that, at
least with the KaZaA application, there is a commun-ication regularly every 12
hours between the log-in (.37) server and the user (whether in peer or
supernode status) [we do not know the nature of these communications].

Notably, the log-in server is not essential to a peer’s use of the net-work. If
the log-in server is not avail-able, the application nevertheless attempts to
connect to a supernode using the list contained in the registry (whether it is
the preset list for a new user or the most recent update for a repeat user).

After log-in, the peer then attempts to connect to a supernode, using a list of
super-node addresses stored in the software application. That list is supplied
by the applica-tion devel-oper, and is identical across KaZaA, Morpheus, and
Grokster. The list includes IP addresses at universities and other institutions
such as the NASA Jet Propul-sion Laboratory. The list of supernodes has changed
with each new version of the application. In the newest version of the
application, the list also includes an IP address at Disney,
rnd11-200.rd.wdi.disney.com. The IP addresses listed in the registry do not all
function as supernodes at any given time; in fact, most do not. After logging
in, a peer works through the list in its registry until its finds a supernode
it can connect to. When the peer connects to a supernode for the first time, it
receives an updated list of supernodes, which over-writes the preset list in
the registry. [we do not know how the suprnode obtains this updated list of
supernodes to distribute]. The list of supernodes in the registry is then
updated every time the peer connects to a supernode. Thus, a peer always has
the most recent possible list of com-pu-ters that have functioned as
supernodes, thereby increasing the odds of a successful connection during the
next session. After initially making contact with a supernode, a peer may be
shunted around the network as the system attempts to match the peer with the
most appropriate super-node.

If the registry is somehow corrupted, the application causes the peer to
contact another server controlled by KaZaA, supernode.kazaa.com
(213.248.112.3. This address is also hard-coded into the application. This
means that the KaZaA network maintains a dynamic list of active supernodes [we
do not know how this happens]. Upon connecting to that server, the peer will
receive a list of known supernodes. All three applications direct the user to
the KaZaA (.3 server in this circum-stance.

KaZaA operates another server in addition to the log-in (.37) server and the
(.3 server described above. That is alpha.kazaa.com (213.248.112.34), the
address of which, as with the other two, is hard-coded into the application.
The (.34) server communica-tes with supernodes [we do not know the nature of
the communication]. During an interval when a Vidius machine was acting as a
supernode, there were 12 different attempts by the (.34) server to connect to
the supernode. Vidius reports that in a completed transaction the (.34) server
sends approximately 1600 bytes of information to the super-node. In addition,
as noted above, a supernode makes periodic connection with the KaZaA log-in
(.37) server. Vidius hypothesizes that there is a loop between the (.34)
server, the (.37) server, and the supernode, which is highly suggestive of some
sort of control mechanism - the nature of which must remain unknown until the
substance of the communications can be analyzed.

Vidius found that "netsplits" or disconnections sometimes occur on the
FastTrack network. The system contains some mechanism to resolve such
disconections by redirecting peers away from a supernode that has become
detached from the network and back to a super-node on the network. Supernodes
that are split from the network also eventually reconnect to it, but that
reconnection takes 10-15 minutes longer than the reconnection of peers. Vidius
believes that this timing differential indicates some control of the
reconnection process that is external to the client application.

Among the supernodes on the new preset list is one at s1grokster.com, which
resides at the same location as the Grokster log-in server. Those computer
functions like an ordinary supernode, compiling indexes of available files and
processing search requests. Vidius was able to connect to that supernode, and
used it to find and download numerous movie and MP3 files.


II. Elements of Claims and Proof

1. Contributory Infringement

Liability for contributory infringement attaches to "one who, with knowledge of
the infringing activity, induces, causes or materially contributes to the
infringing conduct of another . . . [L]iability exists if the defendant engages
in personal conduct that encourages or assists the infringement." A&M Records,
Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001).

Knowledge

o FastTrack sought to obtain licensing from NVPI and was referred to individual
members of the organization.

o NVPI wrote to FastTrack and provided notice that its conduct was infringing
and that it should obtain the necessary licensing.

o RIAA wrote letter to MusicCity when it was an OpenNap system and placed
MusicCity on notice of infringing conduct. The same principals contacted by
the RIAA are still in place at MusicCity.

o In discussion with General Counsel of Copyright.net, KaZaA CEO acknowledged
exchange of copyrighted content and stated looking into filters, particularly
for child porn.

o Press has raised issue of exchange of copyrighted content with company
principals.

o Widespread presence of copyrighted materials on system.

o Message Boards discuss available music, films, and software.
MusicCity employees participate in message board discussions and CEO
acknowledges MusicCity controls message boards.

[should we provide notice by letters and when?]


Material Contribution

o FastTrack creates and licenses software primarily used for the reproduction
and distribution of copyrighted works.

o FastTrack created and controls encryption that ensures that the network
remains closed and insulated from outside monitoring.

o Provides a dynamic list of available supernodes where content can be
exchanged (possibly through the .38 server).

o Continually updates the list of available supernodes and communicates that
information to users (likely through the .34 server).

o FastTrack, MusicCity and Grockster maintain log-in servers.

o Maintains the s1grokster.com server which acts as a supernode (and by
definition maintains a file index).

o Resolves netsplits and other system problems (likely through the .34 server).


Vicarious Infringement

o Vicarious liability arises when the defendant "has the right and ability to
super-vise the infringing activity and also has a direct financial interest
in such activities." Napster, 239 F.3d at 1022.

Right and Ability to Supervise

o KaZaA, MusicCity, and Grokster all expressly reserve the right to limit the
number of files that users make available or access and to terminate users
who infringe intellectual property rights or violate other laws.

o Music-City also reserves the right to remove or disable links to alleged-ly
infringing material.

o Network limits MP3 files to certain bitrate

o MusicCity implemented a filter for child pornography.

o Steve Griffin claims to have cooperated with police in limiting the exchange
of child pornography.


Financial Benefit

o Generate advertising revenue based on user base.

o Steve Griffin expressed to head of Rock the Vote that he can’t stop
infringements so he intends to make money from it.

o Zennstrom acknowledged to the press that FastTrack is making money.

o The services have a rapidly growing user base and according to CNET’s
download.com is the most popular software on the net.

o MusicCity obtaining additional funding from Timberline Venture Partners.


III. Recommendation

We have solid claims against FastTrack, MusicCity, and Grockster of secondary
liability for copyright infringement. The claims are not as strong as those
against Napster, but they are also not so remote as to be wishful.

Our claims would likely be strengthened by learning more about the designation
of supernodes and the content of communications within the system. However, the
encryption of this communication precludes further learning absent cooperation
from one of these companies or court ordered discovery. In that regard, we
recently learned that FastTrack is very interested in exploring alternatives to
litigation and its principals are willing to sit down with the record companies
to discuss ways of resolving any dispute. FastTrack is willing to sell the
company and the technology, or enter into a licensing arrangement. FastTrack is
also willing to implement filtering technologies to prevent infringements. We
have also learned that MusicCity is looking for the litigation and would like
for us to file suit.

Thus, we recommend (1) filing claims against FastTrack, MusicCity, and
Grockster, (2) immediately thereafter initiating discussions with FastTrack
about resolving our claims in a way that will provide us with useful
information and testimony against MusicCity, and if possible obtain FastTrack’s
cooperation in shutting down or converting MusicCity and Grokster, and (4)
continue forward with litigation against MusicCity, Grokster, and potentially
Timberline Venture Partners.

I'm with you, Joe. We need to define what a copyright is. Gets murky pretty fast. You cannot infringe something that you can't say what it is. And don't let the RIAA define it for you. Truthfully, they don't know either.