Luca Lampo & Marina Serina [epidemiC]A MP3-Chronology. Part 3: September 2000 - December 2001
The Clinton admininstration issues an Amicus Brief with reference to section 1008 of the Audio Home Recording Act (AHRA). Amicus Briefs are legal arguments presented by external figures within a criminal trial, since they are in some way involved in its result.
Basically, the document excludes that section 1008 of the AHRA can protect Napster users and excludes the company from all possible accusations of violation of Copyright.
The arguments contained in the Amicus Brief are based on the fact that the cited section of the ARHA talks about equipment intended to produce copies, while a Personal Computer cannot be defined a “Digital Audio Recording Device”, or similar instrument. Further, the ARHA allows and protects non-commercial domestic copying of contents protected by Copyright, but not their public distribution. In case of distribution, the AHRA would require payment of a royalty that neither Napster nor its users could pay, since it is reserved for manufacturers or importers of “Digital Musical Recording” equipment.
The Amicus Brief was issued a month before the expected final sentence in the RIAA vs. Napster case and causes opposition among several Republican party members towards the Democrat government and hence earns the sympathy of the record industry.
Oklahoma State University police serve a student with a search warrant, confiscating a computer and other equipment after receiving a letter from the RIAA stating that “an individual on campus was distributing copyrighted material.” The college was able to identify the student responsible as the RIAA had provided the IP address to the technical services department. An Oklahoma State University spokesperson says that about 1.000 albums worth of material had been seized.
Secure Digital Music Interactive (SDMI) is developing an antibootlegging system known as “watermark”. Basically, this means taking the musical document and inserting protection codes which can be decrypted on with a special key, without which the song cannot be listened to. To check the effective solidity of the system, SDMI offers a $10.000 reward for anyone successfully cracking the "watermarks". “Here's an invitation to show off your skills, make some money, and help shape the future of the online digital music economy.
The Secure Digital Music Initiative is a multi-industry initiative working to develop a secure framework for the digital distribution of music. SDMI protected content will be embedded with an inaudible, robust watermark or use other technology that is designed to prevent the unauthorized copying, sharing, and use of digital music.
We are now in the process of testing the technologies that will allow these protections. The proposed technologies must pass several stringent tests: they must be inaudible, robust, and run efficiently on various platforms, including PCs. They should also be tested by you.
So here's the invitation: Attack the proposed technologies. Crack them.” (from SDMI official statement).
The Case of Felten vs. SDMI
Edward Felten, professor of informatics at the University of Princeton, decided to participate in the “watermark” challenge issued by SDMI. In a short time, with his assistants, he managed to crack 4 of the 6 "watermarks, showing the weakness of the system designed by SDMI. Felten at this point could have won $10,000 for each watermark he cracked. But the competition rules were that all information on possible cracking of the watermarks should not become public.
Felten refused the prize: “I believe that the public, musicians and composers have the right to know if the technology they have to purchase doesn’t work. And then, this could be a very dangerous precedent...”. He decided to present the documentation in public at the Hiding Workshop Conference in Pittsburgh the following April.
In a letter, SDMI warned Felten that divulging the material in question would be a violation of the Digital Millenium Copyright Act (DMCA), which forbids the diffusion of information which, even indirectly, might favour the violation of intellectual property.
The Pittsburgh event was cancelled. Edward Felten and his assistants (supported by the Electronic Frontier Foundation), decided to take legal action in the belief that this use of the DMCA violated the freedom of expression enshrined in the First Amendment of the Constitution.
Edward Felten lost the case. The academic world supported Felten and showed great concern about possible future conflicts between laws defending intellectual property and freedom to do research and divulge scientific information.
Final round between Napster and the RIAA. The appeal sentence is expected for October but the judge decides to hear the case of both parties again and the sentence is not pronounced.
Bertelsmann, one of the major record groups and represented by the RIAA in the trial against Napster, withdraws from the case and signs an agreement with Napster.
Bertelsmann invests fresh capital in Napster and grants access to its music catalogue. The service will no longer be free but will ensure regular payment of copyright. Napster will supply the technology and develop a payment system financed by BeCG (Bertelsmann e-Commerce Group: the group’s new electronic commerce sector).
Bertelsmann thus inherits the valuable Napster Community: millions of users. The two new partners invite the other record companies to take part in their initiative.
The problematic Napster affair seems to have reached a possible solution. Many questions remain, including: “Will the Napster Community agree to pay for a service which, until recently, was free? Will it remain intact or dissolve spontaneously in the same way it came together?”. These are the most common questions on Napster-Swapper chatlines.
The Court modifies the sentence of July 2000 that Napster should close the filenames of the songs protected by Copyright and shared by users must be filtered by the indexing service. In practice, swappers will no longer be able to exchange illegal tracks because the search service cannot find them. The filter is to come into service in March but this will not be enough. Swappers solve the problem with ordinary encryption of filenames, eg.
“Britney Spears” becomes “Bitney Spears” or “Brritney Sppears”. Aimster makes a “Pig Latin Encoder” available to simplify the operation:
“Madonna” becomes “adonnaM”.
“Napster seems to have adopted the most porous filter available... It's not working, it never will work and Napster should be ordered to implement an effective filter or to change its filtering method.”, says Hilary Rosen (president of the RIAA). Napster defends itself stating that the RIAA did not supply the collaboration promised.
Meanwhile, a report by Wired states that Napster traffic has dropped by 60%. On 2 July, Napster is definitively offline to restructure the company for the new payment service.
In September, Napster and the “National Music Publishers' Association” reach an agreement: Napster will pay 26 million dollars for damage to copyright in the past and 10 million dollars for future rights. In May 2002, Bertelsman decides to purchase Napster for 8 million dollars. Two weeks later, Napster files for bankruptcy.
”O'Reilly Peer-to-Peer Conferences” takes place on 14-16 February in San Francisco.
Over 90 speakers take part in the debates and include: Ray Ozzie (Groove), Ian Clark (Freenet), Johnny Deep (AIMster), Gene Kan (Gnutella), Clay Shirky (Napster)and Lawrence Lessig (expert lawyer).
After Metallica and Dr. Dre, another famous exponent of the music business joins the anti-Napster party. Neil Young states he will not perform tracks live from his forthcoming album to prevent them from starting to circulate on Napster: “I don’t want people being able to listen to my music if I’ve decided otherwise”.(2)
Is Napster hurting record sales?
The RIAA identifies MP3-sharing as the cause of the drop in the profits of record companies.
The products most affected are CD singles, which in 2000 fall to almost 40% less than the previous year.
A statistical study commissioned by the RIAA reports that 23% of those interviewed do not buy CDs because they practice Peer-to-Peer.
In May 2001, Jupiter Research publishes a new statistical study on the phenomenon with a research sample of 3,319 people: it finds that 34% of habitual MP3-swappers are buying more CDs than ever before and that only 14% have stopped all purchases. Jupiter Research finds that sales in 2000 have dropped only for: audiotape and CD singles, audiotape compilations, vinyl records and music videos. Sales of CDs have risen by 3%; probably not as much as the record companies had hoped.
Others attribute the cause of the drop in sales to the exorbitant price of CDs.
Apple broadcasts adverts in the USA with the slogan “Rip, Mix, Burn”, with endorsements by Barry White, George Clinton Liz Phair, De La Soul, Lil' Kim, Ziggy Marley, Chuck Berry and Exene Cervenka.(2)
The musician Manu Chao states: “Napster might be a problem for musicians who can’t live off their own music. But I don’t see why a band or artist who are already known should make a fuss about it. We’ve got enough money to live on”.(2)
The virus of song-swapping.
During the legal death-throes of Napster, apart from the many increasingly used and effective Gnutella clones (Limewire, Bearshare, Gnucleus...), opennap starts life (opennap.sourceforge.net). opennap is the Open Source version of the Napster server which, although developed wholly independently from napster.com, uses an identical “centralized” protocol. Anyone can install opennap and supply the service which, until a short time before, could only be obtained from napster.com. opennap, apart from MP3, enables sharing of any type of document.
To access the opennap servers with one’s own Napster client, Napigator is used, a small software downloadable from the site napigator.com, which supplies the updated list of the opennap servers. The Napster-Napigator combination is immediately successful. New clients become available subsequently using opennap directly without assistance from Napigator. WinMX proves the most popular of all.
The RIAA sends some sixty “legal notices” to the Internet-service companies hosting opennap servers.
Audiogalaxy starts life, a “centralized” Peer-to-Peer service devoted to music documents in MP3 format. The search service is accessed via a web interface on the site audiogalaxy.com and installation of a small satellite software enables a user’s songs to be shared with others. The enormous amount of documents available ensures immediate success.
A Dutch group develops a new commercial Peer-to-Peer protocol: FastTrack. Its “decentralized” structure is similar to Gnutella, but its system for handling metadata, (the index enabling s hared files to be found), is more sophisticated.
Three new “twin” programs become available based on FastTrack: KaZaA, Morpheus and Grokster, the first belongs to the owners of FastTrack and the second to the Californian MusicCity which, already known as a major supplier of opennap service, decides to migrate to FastTrack since it is under attack by the RIAA.
The protocol is immediately successful: In June it already has 300,000 users. Not only MP3 and other types of document appear but also many films in DivX format.
FastTrack is a joint venture between Sharman Networks, AltNet (known as Brilliant Digital) and Joltid (known as KaZaA BV). The registered head offices of the companies owning FastTrack are located around the world. This complicates any possible legal action against it.
A large directory for everyone.
FastTrack, Audiogalaxy, opennap, Gnutella and the great variety of protocols and clients available are often used simultaneously by the same file-swapper, who tends to group documents on their own computer in a single directory. An “exchange area” independent of the type of P2P technology used. A huge bank of contents digitised and available to anyone.
Some call it: “A new, spontaneous social practice, A new culture”. Others: “An illegal practice, a vice to be fought against”. Different views of a visibly rooted phenomenon.
At the meeting of the Supreme Council of the USA to approve the “Terrorist Act”, the RIAA proposes putting into the “Terrorist Act” an amendment related to electronic piracy. The amendment is not accepted. Il Council confines itself to simplifying wiretapping on phone lines and net monitoring.
The RIAA and the Motion Picture Association of America (MPAA) sue KaZaA, Morpheus and Grokster, the P2P softwares using the FastTrack protocol. KaZaA is Dutch and belongs to FastTrack, Grokster is Caribbean, Morpheus is the only North American and belongs to MusicCity.
In accordance with the joint case brought by Buma/Stemra, the Dutch organization for the defence of copyright and by the Dutch wing of the International Federation of the Phonographic Industry, in November 2001 the Court of Amsterdam sentences KaZaA to closure on pain of a payment of 40.000 dollars for each day of digital disobedience. KaZaA has two weeks to comply with the verdict.
In December KaZaA ignores the order of the Court.