February 19, 2001– Newsletter #118

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.