The Napster Decision: What's It All About?
Chances are you spent last weekend downloading songs like crazy from Napster, fearing--correctly--the 9th Circuit Court of Appeals in San Francisco would sustain the lower court's order to shut down the MP3-trading service. The appeals court did just that, using unusually tough language: the injunction, said the three-judge appeals panel, was "not only warranted", but "required". In other words, the appeals court agrees that Napster is causing "irreparable harm" to copyright holders and such harm must immediately stop, even though the trial hasn't actually taken place. To be sure, though, the plaintiff--the major CD producers--didn't get everything they wanted from the decision, and some key questions will have to be worked out during the course of the trial.
In this article, I'll review exactly where the appeals court departed from the lower court's decision, and assess what the court's decision might mean for Napster, the future of music trading on the Internet and copyright laws in the US. The quick take: If the appeals court's decision foreshadows how the trial will pan out, it's certainly bad news for Napster, but it's equally bad news for consumers, Internet service providers, and, ultimately, the public enthusiasm for musical expression that the Internet has done so much to foster.
In brief, the plaintiffs argued that Napster is guilty of contributory and vicarious infringement of the plaintiffs' rights to intellectual property, which were routinely traded by means of Napster's on-line facilities. Last July, the lower court granted the plaintiffs' request for a preliminary injunction, which means the lower court agreed that Napster's operations were causing the plaintiffs irreparable harm, and the plaintiffs would probably win the case when it went to trial. On Monday, the appeals court stayed the injunction, which it found justifiable but "overly broad". The case now goes back to the lower court, which will enforce the injunction according to the appeals court's instructions.
To understand what is going on in this case, it's important to understand the distinctions among direct, contributory and vicarious copyright infringement:
<il>Direct infringement occurs when an action infringes on at least one of the exclusive rights possessed by copyright holders under U.S. copyright law (17 U.S.C. § 106). These exclusive rights include the right of reproduction and the right of distribution.
<il>Contributory infringement occurs when a secondary party to copyright infringement knows or has reason to know that direct infringement is occurring on its systems or premises.
<il>Vicarious infringement occurs as an outgrowth of contributory infringement but with the added dimension of profit. A vicarious infringer has the right and ability to control direct infringement on its systems or premises. However, the vicarious infringer elects not to exercise such control because it is financially rewarding to ignore it. The classic case of vicarious infringement involved a flea market owner who knew perfectly well that pirated movies were on sale on his premises, and did nothing to stop it, largely because the availability of the infringing material brought him more customers.
In the Napster case, the plaintiffs argued that, although Napster did not engage in direct infringement, it is nevertheless guilty of both contributory and vicarious infringement. In other words, the plaintiffs are saying that Napster executives and personnel knew perfectly well that massive direct infringement was occurring on their system, and they had both the right and ability to stop this infringement, but failed to do so because they hoped to profit from it.
If there's no direct infringement, there can't be contributory or vicarious infringement. Not surprisingly, Napster sought to establish that the company's users are protected by the fair use exemption to the otherwise exclusive rights of copyright holders. Even if the court were to find that its users were engaged in direct infringement, Napster argued, the company should still be protected from liability for contributory or vicarious infringement based on the U.S. Audio Home Recording Act (AHRA, 17 U.S.C. § 1008), motivated in large measure by the famous Sony v. Universal Studios squabble over video cassette recorders. The AHRA holds, essentially, that manufacturers or distributors of analog or digital audio recording devices cannot be held liable for copyright infringement just because some people might use such devices for illegal purposes.
In addition, Napster sought protection under the Digital Millennium Copyright Act (DMCA, 17 U.S.C. § 512). The DMCA contains provisions inserted at the behest of Internet service providers (ISPs), who feared they could be held liable for contributory or vicarious copyright infringement, even though they could not possibly police the millions of bits flowing through their systems. In essence, the DMCA holds that an ISP cannot be held to possess "knowledge" of direct infringement unless a copyright holder expressly notifies the ISP that infringing material is present on the ISP's system. Under the DMCA's safe harbor provisions, the ISP is sheltered from liability if the infringing material is immediately removed.
Practical Task Scheduling Deployment
July 20, 2016 12:00 pm CDT
One of the best things about the UNIX environment (aside from being stable and efficient) is the vast array of software tools available to help you do your job. Traditionally, a UNIX tool does only one thing, but does that one thing very well. For example, grep is very easy to use and can search vast amounts of data quickly. The find tool can find a particular file or files based on all kinds of criteria. It's pretty easy to string these tools together to build even more powerful tools, such as a tool that finds all of the .log files in the /home directory and searches each one for a particular entry. This erector-set mentality allows UNIX system administrators to seem to always have the right tool for the job.
Cron traditionally has been considered another such a tool for job scheduling, but is it enough? This webinar considers that very question. The first part builds on a previous Geek Guide, Beyond Cron, and briefly describes how to know when it might be time to consider upgrading your job scheduling infrastructure. The second part presents an actual planning and implementation framework.
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With all the industry talk about the benefits of Linux on Power and all the performance advantages offered by its open architecture, you may be considering a move in that direction. If you are thinking about analytics, big data and cloud computing, you would be right to evaluate Power. The idea of using commodity x86 hardware and replacing it every three years is an outdated cost model. It doesn’t consider the total cost of ownership, and it doesn’t consider the advantage of real processing power, high-availability and multithreading like a demon.
This ebook takes a look at some of the practical applications of the Linux on Power platform and ways you might bring all the performance power of this open architecture to bear for your organization. There are no smoke and mirrors here—just hard, cold, empirical evidence provided by independent sources. I also consider some innovative ways Linux on Power will be used in the future.Get the Guide