Is shutting down Kazaa a violation of guaranteed Freedom of Speech?

[Bytronix]

In essence, programming code, or "Programming Language" is a form of speech. I've seen it said somewhere before that by banning a program, you are thereby banning speech. Therefore banning use of kazaa software == banning of free speech (in the form of the use of coded language). Any comments on that? I forgot where it was but I think there was a whole website on the topic.

Also, as some seem to think that the RIAA is abusing its "copyright powers", would it not now be fair for Kazaa and like minded programers to (in return) somewhat abuse freedom of speach powers? Or would that be like yelling Fire in a crowded building?

Just food for thought.
Coment any which way you like.

-Mike B.

PS: Please try not to get matematical on this topic. However, it would be interesting to see a programmer get mathematical with a judge. :)

[mojo-ris-in]

:devil Well this is an interesting point of view that I never really thought about before now. I can see a point there, however, when a program is used solely as a means to circumvent copyright laws and illegally download works that are someone else's against said owner's wishes I doubt that many Judges will side free speech over copyright law. But again, if a company can PROVE that there are legitimate uses for their programs then they might have a case. Napster tried that with their court case and got their asses handed to them so it's doubtful that many judges are going to go against the other rulings.

[Bytronix]

Ok, here's 2 contradicting points of view to look at. More stuff to think about...

a. http://www.anti-dmca.org/ - for those against DMCA
I'm not going to quote them. They've got enough quotes on their web site if you look around.

The other point of view...
b. Amy Weiss, a spokesperson for the RIAA, states: "How pathetic that those who want free music don't believe in free speech."
everyone knows their address. but, out of convienience to the enduser, (if it's still legal) :) here's the link... http://www.riaa.com

Also, an excellent article on the topic at WIRED (also linked to in the news section of zeropaid is as follows...
http://www.wired.com/wired/archive/11.02/kazaa.html

One thing that the article does point out is that the Kazaa is not used solely for exchanging pirated material, but also is used (via altnet) as a legitamate method of purchasing protected works providing an alternative and functional business model for selling of such works. As well as providing other future services such as selling spare processor cycles and hard drive space. It also makes note that Kazaa did attempt to work with the RIAA at first getting everything licenced, but for some reason it did not work out. There is also a legitimate use of the present Kazaa which is not frequently taken into consideration. IE: exchange of non-copyrighted works.

Ok, I apologise if I'm sounding like I'm defending kazaa, but to me, I would legally approch it the following way... You don't attack the crowbar manufacturer for people who choose to misuse the crowbar. (or lockcutters, guns, etc...)

On the other hand, going after all those who presently misuse kazaa would be an interesting task. Presently (I think it was 1.4million users) of kazaa. The RIAA does not really want to alienate it's customers by suing all 1.4million of them. Although they could. Not shure how though. In my opinion, it would quite litterally be the only way to effectively shut down kazaa seeing as kazaa (unlike napster) is decentralized.

I think if the RIAA chose rather to work with the alternatives rather then fight them, in the long run it would do them better. Ultimately, what they are doing right now is just making money from lawsuits (which I do not think is a respectable profession) - and alienating their customers. I really don't think they're paying any attention to their customers because if they were, they would not be in the situation they are now.

Something to think about: What does the Baseball card industry (if such a thing exists) do about all the forged baseball cards? And does anyone really want a forged baseball card? Also, baseball card wise (as an ex baseball card shop employee) how does a customer feel once they found out it's a forgery?

Copying is going to happen. It's unpreventable. Contradicting laws exist. Lawyers love it. There's fair use, freedom of speech, copyright, customer demand and (as related to this topic) not much more.

It's like the VCR all over again.
That's all for now.

This is quite literally the longest post I've made to zeropaid. But, (in my opinion) is the most interesting topic I've found here.

Maybe they should approach it like drugs and/or speeding tickets. You won't be able to stop all illegal drug traffic. You won't be able to stop all speeders. You're sure as heck not going to be able to stop all copying. As much as that is what some people would like. Perhaps it should be approached like speeding & drugs. The greater the amount of your illegal activity, such as storage of illegal content (which then brings up privacy issues rather then speech issues) the higher the legal ramifications are. Find a way to set up some speed traps and/or stings. That's what I think the approach should be if your against free distribution of copyrighted material. But you do that at the risk of alienating that customer who bought that authentic t-shirt, baseball cap, and/or cd. it's not just music that's being affected here. Let's not forget the tips. As I said in another post in a roundabout way, as an ex-dj if you do a good enough job you should be perfectly happy (which I was) with just the tips. Everything else is a bonus.

That's all for now.
To musicians, start setting up some tip jars on your web sites and see what happens. I'm curious as to the results.

-Mike B.

[JunkMale]

I should begin by stating the practical response: in point of fact, in a situation like this, there's always a smoking gun memo that demonstrates the intent to violate copyrights. That's what sunk Napster--memos indicating that they didn't want to collect user information for that reason. With Kazaa, the decentralized corporate structure certainly indicates a desire to evade and frustrate the court systems of the globe; no doubt when it was organized, someone wrote a memo on why they should be set up this way (i.e., to evade the courts). So as a practical matter, it doesn't matter whether computer code is valid speech in the abstract, because in the case of Kazaa and Napster, it isn't intended to be valid speech.

As for the abstract question, anything that is intended to be expressive is valid speech, and computer code is certainly intended to be expressive. Code for a commercial computer program (one from which the owner inteded to benefit) would presumably be considered commercial speech, which is given less protection, historically, than political speech. (Query whether that's still true, since the commercial and the political have all but merged.) In the case of Kazaa and Napster, the code isn't intended to be expressive, it's intended to be utilitarian, so again, this isn't really an issue here.

But let's say the code WAS intend to be expressive. For this to be meaningful under the law, it would have to express its meaning when compiled and run, because Kazaa doesn't give out the source or object code, and therefore can't make a meaningful argument that this is speech on the source or object level. Let's even say Kazaa had a political message--when you ran it, it said BUSH STOLE THE ELECTION on a splash screen for 10 seconds. Well, that's no good, because the expressive speech is just meaninglessly bundled with the criminal software. You can't just tie a note to a brick, throw it through a window, and call it speech.

Let's cut to the chase: what distribution of code would qualify as free speech? Source code when distributed to people who can read the source. We've seen some courts give DeCSS protection against prior restraints on distribution, which is a speech-based victory. Sounds good? It isn't, really. Protection against prior restraints only means you can say it. It doesn't mean you can't be sued for saying it. The idea is that you are free to disseminate your message, and the person who feels you've infringed their rights is free to sue you for it. The result of that second suit may well be a permanent injunction against you saying it ever again.

What's the real status of something like Kazaa? I agree that the rule in Betamax (i.e., a technology with a substantial noninfringing use cannot be outright banned on the theory that it will only be used for infringing uses) should protect P2P apps. It won't protect Kazaa, though. The problem is, the argument being made isn't that Kazaa/Fastrack/the technology has no substantial noninfringing uses, it's that Kazaa had bad intentions and desired that users made infringing uses. I.e., contributory copyright infringment. They're not attacking the technology or the right to distribute it, they're attacking the maker for doing everything in its power to encourage and aid the crime of infringment.

What happens if Kazaa loses? The court could order them to work with the RIAA to develop methods to track people on the fastrack network. Can the court enforce it? Not sure how they could, no. Kazaa should be liable in theory because it's making counterclaims in a U.S. court and should therefore submitted to the jurisdiction of the court. In practice, Kazaa seems to have no assets in the U.S., and most of its assets are in countries that won't enforce a U.S. judgment.

So in sum, Kazaa isn't speech because it isn't intended to be; but even if it were a form of valid speech, the law would allow it to be distributed, but allow the makers to be sued and enjoined from distributing it ever again, putting us pretty much where we are today.

[Bytronix]

"You can't just tie a note to a brick, throw it through a window, and call it speech." Very good quote. That one had me laughing pretty good. Overall an excellent reply.

What about the valid uses of peer to peer technology though? Such as exchanging/distributing public domain, shareware, freeware, non-copyrighted works? Also "distributed computing" and the reselling of pooled processor/storage resources attained through distributed computing? Those are valid uses for peer to peer technology. I have no idea where I'm going with what I just said. Just wanted to mention it. Also need to mention again that peer-to-peer tech is kinda like that "hydra" creature I read about on zeropaid. Cut off one head and ten more appear.

I think Kazaa has much more potential to work legally in the future if they just make some changes to their existing structure. IE: As much as everyone would hate it, get rid of the illegal portions of the software and keep the legal portions intact (aka altnet, banner ad's, future distributed computing addon's) and remain able to grow. Napster, (and possibly Kazaa) although completely illegal (in particular Napster) should not be shut down, but rather re-written or modified. Does not seem to make sence to get rid of all the traffic (which is worth something) and advertising dollars they were getting by shutting the technology down rather then modifying it, it seems they were sort of "throwing away the baby with the bathwater" sorta speak.

Or, maybe a change needs to be made where the music remains free at the cost of giving all the advertising revenues to the artists. One of the points that I think I got from the WIRED article is that a lot of money (possibly more then the record industry can make through direct sales) can be made with just altnet & the advertising. Not to mention the future plans for selling the distributed network resources (hard drive space & idle processor time of all the end users) which should be able to be re sold to all individuals who use the software. It is a future if not already existing one I think. (See http://www.porivo.com/ - The best present day working model for what it does in my opinion.)

Granted, at present (at least in the US), Kazaa (as it is) is illegal. The approach may have been wrong, but I think they have some excellent ideas that should really be considered.

I think there's a lot of potential for an all in one (brand new) killer app of sorts that would fall into the category known as "peer-to-peer" and/or "distributed network" software. They are both very similar and should be put together. You would have your OS, your utilities, your networking, gaming, and your productivity suite. Everything pretty much falls in to one of those categories. The networking category is the one that is lacking that has the potential for the next killer app. And although presently (although not yet ruled upon) illegal Kazaa isn't there yet, I think they have the closest model for getting there.

Make any sence?

-Mike B.

[Sephiroth]

No..

Because Kazaa is not a US company and the US constitiution wont help them.

Second its being claimed that they broke laws which the constituion doesn ot guarentee you the right to do. "Bomb threats" or yelling fire in a crowded movie threater is not protected by the first amendmant.

Also viruses and malicious programs arent covered by "freedom of speech"

yes there are valid uses and so the RIAA wants to force cnotrol mechanisms on all p2p networks/content and try to collect their "lost profits." Kinda like with Napster.

[dr. damn]

Basically, the U.S. law only grants freedom of speech when it's convienent to do so. Would you believe that Abbie Hoffmann was arrested for wearing a U.S. flag shirt in the 1960s? Look it up if you don't believe me.

[Sephiroth]

Originally posted by dr. damn
Basically, the U.S. law only grants freedom of speech when it's convienent to do so. Would you believe that Abbie Hoffmann was arrested for wearing a U.S. flag shirt in the 1960s? Look it up if you don't believe me.

No..

Freedom of speech first is the freedom the government gives you not private property, houses, businesses, web sites... Which is why if someone starts insulting you in your own house you can ask them to leave, because its your property not the governments and 1st amendment doesnt apply.

Second it does protect if you put people in harms way by making threats and etc..

The problem is when people dont understand the interptation of it and just assume the meaning from the title in a very generalized and literal way.

Somneone just wearing a flag shirt.. Arrested and getting convicted are two different things were they covicted? Probably some stupid local ordinance or state law or something.

[Bytronix]

Quote from Sephiroth...
"Because Kazaa is not a US company and the US constitiution wont help them. "
Ironically, they are going to trial in a US court are they not? And as such if trial is held in a US court it has to be held by US law.

Quote from Sephiroth...
"Second it does protect if you put people in harms way by making threats and etc.. "
I think what you meant to say was "does not protect if putting people in harms way" It would be interesting if people would be protected for putting people in harms way. Either way, it has yet to be proven that anyone has been harmed. Hence the trials.

If anything, according to the following article, Kazaa has most likely helped, not harmed, artists and consumers.(as well as themselves & their sponsors) ...
http://www.salon.com/tech/feature/2003/02/01/file_trading_manifesto/index.html?x

-Mike B.

PS: This must be the worst (or possibly best depending on how you look at it) poll I've ever posted. So far over 200 views and not a single vote. I've posted poll's about toilet paper that got more votes! :)
-MJB

[Psilaxs]

Your not supposed to wear the united states flag, it is against the codes of conduct concerning the flag, also, you are not suppoed to allow it to touch the ground either.

I hate it when i see all these dumbass athletes draging the U.S flag behind them or draping it around themselves.

[JunkMale]

Psilaxs wrote: "Your not supposed to wear the united states flag, it is against the codes of conduct concerning the flag, also, you are not suppoed to allow it to touch the ground either."

To quote South Park . . . Cartman, what the h*ll are you talking about?

What are the "codes of conduct concerning the flag"? The stuff promulgated by the Veterans of Foreign Wars and the Boy Scouts? Maybe you didn't notice, but both groups wear the American Flag (the boy scouts on their sleeve, the FVW on their hats). I think what you're thinking of is that both groups have expressed a preference of not *cutting* the American flag, which would be necessary to turn it into *clothing*. But wearing the flag draped around their shoulders? They already wear it ON their shoulders.

Additionally, and more to the point, the BSA and VFW aren't affiliated with the U.S. government and their "codes of conduct" for the flag are just another list in the many lists of rules these paramilitary organizations come up with to keep themselves busy. They have no legal effect, and considering neither group existed when the flag was fought for and earned its significance (though obviously the VFW fought for the flag personally and have more than earned the right to express an opinion), I as an American have no interest in their opinion of how it should be appropriately honored.

As for the second thing, yeah, both groups also say it shouldn't touch the ground. Again, neither group has any status as a rulemaking body and their "codes of conduct" have about as much force in your life as the breakfast menu at IHOP.

The only U.S. laws on the use of the flag are . . . there are no laws. Congress passed a Flag Protection Act in 1989, primarily to stop flag burning; the Supreme Court struck it down in 1990's U.S. v. Eichman. The Act prohibited "maintaining [a flag] on the floor or ground," but the Supreme Court said there was a First Amendment right to destroy, mutilate, and yes, drag the flag.

So I dunno where you're getting this "codes of conduct' baloney, but it's not from the government.

[Psilaxs]

Ughh, It is acceptable to wear the U.S flag as a badge or emblem. http://suvcw.org/flag.htm

No, they may not be "laws" But they can be enforced by local state government, State government etc.

It is a guide for properly displaying Old Glory

[JunkMale]

Originally posted by Psilaxs
No, they may not be "laws" But they can be enforced by local state government, State government etc.

No, they may not be--it's a violation of the first amendment.

[Bytronix]

One thing I'd like to note though about Kazaa...
They're ruining the reputation of Peer To Peer because they did not stick to their original plan. Or at least not the one that I remember them originally presenting. It's a little top heavy. Either that or I'm having a bad day.

[aqlo]

Touching on the "flag codes" distributed by the VFW and other groups, the best of them indicate what they really are: "portions of the Uniform Code of Military Justice which may be applied to civilians." Generally they include the Flag rules as well as provisions regarding "inciting to riot". And this is the important part. Any of you who think these portions of the UCMJ are not "law" should go ahead and try to burn or otherwise defame a flag during a military emergency. Depending on the degree of urgency involved, you will either be arrested or simply shot. That's right, it's legal for US troops to shoot flag-burners as well as looters, curfew breakers and other rioters.

In the example of Abby Hoffman, who led the Youth International Party's assault on the 1968 Democratic convention, all the numerous charges made against him obviously amount to "inciting to riot".