Friday, Sep 5, 2008
Jim McCoy, founder of Mojo Nation, a peer-to-peer file-sharing service
This was inevitable. Napster was lucky in that the injunction wasn't completely upheld.
What's interesting is what the court said about how Napster relates to the First Amendment; it shot holes in the slashdot cypherpunk argument that Napster constitutes speech.
The judges also changed how the DMCA will be applied. The District Court injunction held that Napster had to preemptively prevent illegal stuff from getting on the system. But now, with the present decision, it's a shared burden. Napster has to remove files if it knows that they're infringing, but the copyright holder has to notify Napster first. So Napster can't hide its head in the sand, but on the other hand, when someone connects up and uploads files, Napster doesn't have to make sure they're legal. So the court allowed for a safe harbor; it argued that it does apply but not quite as broadly as Napster wanted it. We think that's significant. It has confirmed the basic wisdom that if someone puts up a file, on a cache system, a Web page or Napster, the service doesn't have to nuke it until it knows about it.
For us, it's a little less of a direct application. The Napster play is not our story. But at the very least, the decision clears the field and removes the cloud of suspicion. People in and around P2P had been waiting for the other shoe to drop. And if this decision had been overly broad, we would have all been in trouble. That was getting a little scary. But [the decision] didn't attack the technology. So I'm glad they said that there's nothing radical about what the technology does; Napster just has to follow the same DMCA rules like everyone else.
Mark Cuban, founder of Broadcast.com
Just another example of the recording industry doing its best to shoot itself in the head. It finally has a single destination Web site where 40 million plus digitally ready music fans go to celebrate their PERSONAL interests in music. Napster has become the ultimate music community. Rather than taking the easy road by offering those 40 million plus people the option of buying virus free, guaranteed quality and multi-format choices of hassle free downloaded music at realistic prices, they take probably what will go down in history as the stupidest business move every made, and shut the doors on the largest congregation of music buyers in the history of the world.
What the music industry will be left with is their ongoing fantasy of trying to drive music consumers to industry owned Web sites in enough volume to generate any material amounts of digitally delivered music revenue. The music industry has already spent and lost more money trying to create viable Web sites for digital commerce then they could ever possibly lose to downloaded music for personal use via Napster. With Napster gone, the cumulative total that the labels will spend trying to recreate their own personal crapsters will exceed a billion dollars easily and get absolutely no results.
They paved paradise and put up a parking lot.
Mike Godwin, lawyer and chief correspondent for IP WorldWide
It's easy to get lost in the details here. What we're going to have at the trial court now is a negotiation over the scope of the injunction. Both sides are going to say what each thinks; we know that the original scope of the injunction that put all the burden on Napster was too broad. I don't think it's a slam-dunk that the record companies can just provide lists of their catalogs and say that anything on it is infringement. But maybe they can.
What is true is they will go back to court and talk about the scope of the injunction, and that gives Napster another chance to rehabilitate its image in Judge Patel's court. Since that injunction was issued Napster has partnered with one of the plaintiffs. The kind of presumption that Patel brought to the case, and all her factual findings, were that Napster is just out to infringe. Now as we come back, Patel knows new things -- that Napster is partnering with a big-time copyright holder, BMG, and so the presumption that Patel brought to all the evidence is something she has to call into question now. I think she is not going to create an injunction that effectively shuts down Napster altogether.
Patel just sort of assumed that Napster was illegitimate, but now that this negotiation is taking place, she has parties on both sides that qualify as legitimate businesses, and if Napster's legitimate business is squashed by this injunction it can also claim undue hardship.
Raymond Kurzweil, author of "The Age of Intelligent Machines"
The recording industry has been behind the power curve on developing a viable business model in an era of ever more powerful file sharing and streaming. The model of charging almost $20 for a packaged album hasn't changed since I was a kid in the 1950s and earlier. Ultimately, these issues will affect all intellectual property, including software. I don't think shutting the Napster barn door will get the horses back in the barn.
Jimmy Greer, a manager at Revolver, which represents the band Everclear
I don't know how big of a ruling it's going to be; Napster's still going to be around, some way or another. If it's not Napster, you'll find someone else to do it. But hopefully, yeah, they're going to be able to do something about it.
[Napster is] a big problem. It's basically stealing. But I don't think shutting down Napster is going to solve it. Unless they come up with some kind of crazy encryption. But the people who can hack that kind of thing are always one step ahead.
The whole Napster community could be used as a great promotional tool. The thing that hurts is when you put out a record that you've spent months and months on and then, two weeks before the release date, it's available on Napster. That really hurts sales. Especially for acts like Everclear, where the demographic is young people, 18-25. But it depends on the genre; you aren't going to see James Taylor's record sales affected because of Napster. But at the end of the day, people are still going to want to go to the store and buy the CD, to get the liner notes, art, etc.
The Internet is never going to be a viable outlet for sales, or significantly hurt sales.
Glenn Reynolds, lead singer of techno group Mobius Dick and law professor at the University of Tennessee
Well, based on my oh-so-thorough reading of the opinion over the last 15 minutes, it looks as if most of Napster's legal arguments have bitten the dust, meaning that it'll have to win on the facts. (I am, to put it mildly, astonished that the court made such short work of the Audio Home Recording Act issue. To argue in this day and age that music on a hard drive isn't music is just silly.)
Napster's best hope, it seems to me, is to see a lot of stuff on its network that is clearly noninfringing. The court clearly left open the possibility that the technology might evolve toward noninfringing uses and that notions of Napster's culpability shouldn't be based on a snapshot of what was going on at a very early stage. The more that Napster's content moves toward independent artists and major groups that grant permission for Napsterization of their tunes, the stronger its position at trial.
Speaking personally, I've bought more CDs since getting music off the Web (not via Napster, which I don't use for security reasons), but they've mostly been from independent artists whom I never would have heard from previously. I still think that this is the record companies' biggest fear: not that people will trade copies of Britney Spears, but that they'll bypass the record companies entirely.
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