Re: Napster: thoughts and comments?

From: Lee Daniel Crocker (
Date: Wed Jul 12 2000 - 22:09:10 MDT

> > Well, it's not quite that simple (laws never are, and IP laws are much
> > worse). "Public performance" can be an infringement, and charging
> > money or not is not the deciding factor. A court decides on a case-
> > by-case basis. Playing an album at your party is probably okay, even
> > if you charged for entrance. But waiters singing "Happy Birthday" to
> > customers is not--that has been ruled an infringement of the copyright
> > to that song owned by the estate of the Smith sisters, who zealously
> > pursue such infringements of the copyright--no doubt to encourage the
> > production of more creative work by their dead ancestors.
> Ah, but waiters are engaging in a dinnerlong performance for compensation:
> their tips.

That's one possible interpretation, and perhaps that argument could be
made in a civil copyright action. But the fact remains that copyrights
are now embodied in federal /criminal/ law, and are no longer merely
torts. They are crimes, and can be prosecuted as such totally in the
absence of any tortious harm. Whether or not you make money from an
infringing use is /one/ factor a court is expected to consider in judging
"fair use", but that's an affirmative defense, where the burden is on
the defendant.

> > If you think "I'm not making money" is an excuse, put up a fan
> > website for a popular movie or TV show and see what happens.
> Where such websites get nailed is the unauthorized use of trademarks, logos,
> etc. which do not depend upon money changing hands to be protectable..

That's one way they get in trouble, yes. But sites with transcripts of
the shows, for example, and no trademarks have been shut down as well.

You absolutely /can/ be prosecuted for copyright infringement for uses
that do not involve compensation. This has been done, successfully,
and will continue to be done.

Lee Daniel Crocker <> <>
"All inventions or works of authorship original to me, herein and past,
are placed irrevocably in the public domain, and may be used or modified
for any purpose, without permission, attribution, or notification."--LDC

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