Word: napstering
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...Recording Industry Association of America (RIAA) had already sent more than 60 letters to ISPs of servers running OpenNap, an open-source program that uses the Napster protocol to provide similar peer-to-peer indexing. A user of OpenNap first employs any of a number of client programs (like Napster's MusicShare) to open up a hard drive for outside access; a list of contents are then uploaded to the OpenNap server, which does nothing but publish a directory of connected clients and offer a means of searching them. Any downloads are conducted between users, and the files--any file...
...doctrine of contributory infringement is one unique to the copyright code. Refusing to stop illegal activity when you have a financial interest in it is known as "vicarious" infringement, and Napster was probably guilty of that too. But anyone who encourages or assists in the violation of copyright can be guilty of contributory infringement, a label that may become a dangerous catchall...
When the Ninth Circuit found Napster liable for contributory infringement, it fortunately reiterated the Supreme Court's standard that devices capable of substantial non-infringing uses are still legal. The Napster protocol, which is merely a set of instructions for sending and receiving files, is no more illegal than the Windows "copy file" function. Beneficial, content-neutral technologies can easily be hijacked by pirates who find them useful, but they should not be banned for that reason alone. Otherwise, VCR's and tape decks would have been banned long ago for contributing to copyright infringement--as they almost were until...
...court did require Napster to remove any songs copyrighted by recording companies. This is a tall order, given that Napster users name their own files and that "MysteriousWays.mp3" could be anything from U2 to static to uncopyrighted German techno. A poorly structured injunction could mean that Napster will be forced to shut down its service, unable to bear the costs of compliance...
...imposing these costs, both the trial court and the Ninth Circuit neglected to address what was Napster's most serious argument--that publishing a directory is a protected act of speech. Copyright laws and the First Amendment often seem to conflict--publishing a book or recording a song are expressive acts --but their conflicts are normally addressed by "fair use" exemptions, which allow for portions of copyrighted works to be quoted or commented on. Downloading copyrighted music is not fair use, and so the Napster courts saw no need to address Napster's other First Amendment concerns...