February 19, 2001-- Newsletter #118

By Vince Barnes

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Goodies to Go (tm)
February 19, 2001--Newsletter #118

This newsletter is part of the internet.com network.
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Greetings, Weekend Silicon Warriors,

May I ask a question? Why does everything, including the George Foreman grills, now look like the iMAC? These days it seems that everything made of plastic has one brightly colored piece overriding the whole. What will we do when that runs out of style?

Did you hear...

Do you remember the story regarding Amazon attempting to patent a "one-click technology"? Amazon sued Barnes and Nobles for using a one-click programming the online bookseller felt was infringing on the patent. The legal wrangling continued until last Wednesday when the U.S. Court of Appeals for the Federal Circuit in Washington, D.C. stated that Barnes and Noble "has mounted a substantial challenge to the validity of the patent". Neither company would comment further regarding appeals, but I would bet a buck that one is coming.

Apparently people I know really like Anna Kournikova. I received seven emails, Melissa style, from a slew of people. That means they opened their own version of the image not seeing that the .jpg extension was then followed by "vbs". Oops.

I also keep getting the Snow White file with the subject line "hahaha". It's an .exe attachment so I never run it. I just want to know why I am getting so many of them.

Icebox.com is closing its doors. Executives said the entertainment Website simply ran out of the funds needed to keep it afloat.

I wrote about the new seven domain extensions chosen by ICANN a few newsletters back (read it at: http://htmlgoodies.earthweb.com/letters/107.html). Many of you wrote and asked why ICANN would choose such names and how you could complain. Well, maybe your complaints will be answered. The U.S. House Energy and Commerce Committee will soon begin a hearing on if ICANN disallowed competition.

Now onto today's topic...

NAPSTER. (You had to know this one was coming)

I have already received many emails from people who asked me if I was happy NAPSTER was dead.

Well, at the time of this writing, the NAPSTER site was still up and running so I'm not so sure that the site is dead. Also, contrary to what many of those who read my newsletters think, I am not, and was never, asking for the demise of NAPSTER. You can read my thoughts for yourself at http://htmlgoodies.earthweb.com/letters/092.html.

I'll quote myself from the newsletter noted above: "I am not a fan of how NAPSTER works in its present configuration. I think it's wrong. I think it is people circumventing the monetary side of music. No, I do not think NAPSTER should be disbanded, but I do think it should be set up a little differently than it is right now." I stand by that statement.

No, I'll not jump for joy if NAPSTER dies where it sits. In fact, I think NAPSTER should have been saved and I was of the opinion steps were being taken to do that, hopefully they still are. As I said before, users should pay a fee for the copyrighted music they download. I was certainly not the only one. NAPSTER itself could see the writing on the wall.

In October of last year Bertelsmann, the "B" in BMG music announced a pact with NAPSTER whereas money would be given to the site to keep it afloat. Furthermore, a fee structure would be implemented. That fee was supposed to go into effect this coming summer. Bertelsmann had said all along that if a fee were imposed, BMG would drop out of the Recording Industry Association of America (RIAA) lawsuit.

The problem was that time ran out and the 9th U.S. Circuit Court of Appeals basically "threw the book" at NAPSTER.

I understand that NAPSTER is going to appeal, but I really don't think it will do any good. The law is not now, nor was it ever on NAPSTER's side. The site really had no choice but to lose as they did.

NAPSTER attempted to state that they were protected under the 1984 case of SONY vs. Universal Studios where the ability to make a copy of a movie was upheld. NAPSTER couldn't convince the court that it was an equal case especially since MP3 allows such a staggeringly quick proliferation of copies. NAPSTER claimed they were only a sampling service. That was not true because full songs were being downloaded. NAPSTER proclaimed that they were responsible for increased music sales yet they couldn't produce any true evidence. The RIAA had numbers showing correlations between lost sales and NAPSTER downloads.

I believe the death-blow to NAPSTER's case was a memo by co-founder Sean Parker. NAPSTER had claimed all along that they did not know copyrighted music was being downloaded. However, in a memo by Parker, he stated that the company must remain ignorant of the real names of those downloading music. That would have allowed some degree of deniability. The court didn't buy it.

From the beginning, this NAPSTER versus the RIAA fight was bound to end up with an explosion. It is my opinion that NAPSTER incorrectly couched their defense and the RIAA incorrectly couched their argument.

As I said above, NAPSTER was wrong from the get-go when it began dealing with copyrighted music. If NAPSTER, from the beginning, had made an attempt to stop the trading of copyrighted music the blow they took last week would have been much less, if they would have taken it at all.

On the other hand, had the RIAA not used the law (which they knew was on their side) as they did but rather embraced NAPSTER's peer-to-peer format, the belief system of the music buying public might have been a little different today. As it now stands, the RIAA will be very unhappy they decided to puff out their chest and attack as they did.

I say that because NAPSTER may die, but it leaves children in its stead. A site named OpenNap (http://opennap.sourceforge.net/) is offering the software that allows any computer anywhere to act as a NAPSTER server. There's Aimster (http://www.aimster.com) and Gnutella (http://gnutella.wego.com).

Such open-source software is going to either bring the recording industry to its financial knees or force it to interact with these types of peer-to-peer systems. NAPSTER was just the first little whack-a-mole that stuck its head out of the game board. The RIAA whacked it down, but others will soon popup. Heck, an MP3 and a very big email address book could be a concern.

Had it been handled correctly from the beginning by forming a partnership then the outcome would have been different. Instead, both NAPSTER and the RIAA wrapped themselves in copyright law and the first amendment respectively when it was all wholly and truly aboutmoney.

The vast majority of those who used NAPSTER and proclaimed they were striking a blow for personal freedom and the first amendment didn't really feel that way. They wanted free music. You'll never convince me otherwise. I offer as proof that the day before NAPSTER's decision came out, hardly anyone was lobbying congress or protesting. At one time 1.8 million were on NAPSTER grabbing up all the free music they could get their hands on.

The RIAA's fight was first and foremost about money. At least they were up front about it, shooting themselves in the foot in the process.

What it all comes down to is this; unless the laws are changed, NAPSTER will continue to lose in court. I don't doubt that an appeal will be heard. This may all go to another court. I highly doubt it'll ever get to the Supreme Court. Even if it is sent to the court, I would be very surprised if they hear it. The law is clearly not in NAPSTER's favor.

For NAPSTER to win, those who support it must take their case to this country's lawmakers. Getting upset at the RIAA will do little or no good. Starting up secondary NAPSTER-like systems will be a real pain in the neck to the music producers, but it still won't change the law.

For the RIAA to win, they will have to, themselves, work to keep NAPSTER alive and find a method of making NAPSTER, and some fee structure, attractive to those who have supported NAPSTER for so long. The days of price gouging are out. Peer-to-peer music will happen whether the music companies like it or not. Suing and suing and suing again until everything lies crushed around is certainly not the answer.

Striking a dealthat's the answer. An understanding that copyrighted music is not totally freethat's the answer.

We'll see if either side wants to bend a little.

>>>>>>>>>>>>>>>>>>

That's that. Thanks for reading. I don't doubt there will be a few interesting emails from this one.

Joe Burns, Ph.D.

And Remember: You've seen the word "Ye" used in such formats as "Ye Olde Shoppe". Why "Ye"? Well, in Anglo Saxon the "Y" was used to represent the sound "TH". That means that you are to pronounce it as "The" rather than "Ye". Also - the "e" at the end of the second two words is not pronounced. So saying "shop-ee" is not correct.

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