For all intents and purposes, Napster died nine years ago today

Judge Marilyn Patel, of U.S. District Court for the Northern District of California, granted an injunction filed by the record industry against Napster, forcing it to cease all operations.

That was the death of Napster, though two days later an appeals court granted the peer-to-peer file sharing service a stay of execution, which ended on February 12, 2001, when the U.S. Court of Appeals for the Ninth Circuit announced a decision in A&M Records v. Napster, which upheld the RIAA’s injunction saying Napster was participating in copyright infringement.

Napster’s legal counsel tried to argue the VCR case, citing the Audio Home Recording Act and throwing out phrasaes like “fair use.”

They failed.

The following article appeared on ReviewCenter.com on July 26, 2000.

Here Today … Gone Tomorrow — Is Napster Really Dead?
By Christina Warren, Review Center Staff

On Wednesday, a Federal Judge sided with the Recording Industry Association (RIAA) of America, and ordered a temporary injunction on the popular music program Napster. Napster allows its users to share music files in the form of MP3s without regard to copyright.

When the program gained astounding popularity, the recording industry and a group of vocal artists took exception and filed suit against the company, alleging that the trade of MP3s violated copyrights held by the artists and their recording companies.

“Napster is enjoined from copying or assisting or contributing to the copy or duplication of all copyrighted songs and musical compositions of which the plaintiffs hold rights,” US District Judge Marilyn Hall Patel ordered at a hearing in San Francisco federal court.

This ruling will no doubt shock the many users of Napster, as well as supporters who did not think the program would be shut down so quickly.

“When the infringing is of such a wholesale magnitude, the plaintiffs are entitled to enforce their copyrights,” Patel said. Patel ordered that the injunction go into effect at 12 a.m. PDT on July 28, 2000. Patel’s ruling in favor of the RIAA strongly suggests that the trial that will take place against Napster at the end of the year will also find in favor of the RIAA.

The creator and CEO of Napster held a live web broadcast at 7 p.m. PDT on Wednesday, addressing the courts ruling and the future of Napster. Essentially, the message was that while they adamantly opposed the ruling by Judge Patel in the hearing, they would comply with the court’s order. What does that mean?

This means that as of midnight on Friday morning, Napster will basically cease to function as we know it.

The question then becomes for Napster’s users, “What next?” Programs like Gnutella sprouted up as soon as the RIAA filed suit against Napster in December. These programs are even more dangerous to copyright holders, because they allow not only the transfer of music, but of video and text files as well.

It will be hard for anyone to stop people from sharing files. The MP3 format is hardly new, even if it has been making a lot of news with the advent of Napster and the subsequent trials. MP3 files were around before Napster, and they will continue to exist in the wake of this judgment.

Websites are already in the planning stages of trying to keep Napster alive. www.napigator.com has already started posting un-official Napster servers that can be used with the current Napster clients. This will allow Napster users to continue to use Napster after the Friday injunction, but without logging onto “official” servers. As these services become increasingly popular, it is going to be difficult to shut Napster down completely.

Users will have to await a final ruling when the case against Napster goes to trial this fall. The RIAA represents major acts like Metallica and Dr. Dre and represents companies such as Universal Music, BMG, Sony Music, Warner Music Group and EMI.

The 5-4 high court ruling in Ricci v. DeStefano overturns a decision that Sonia Sotomayor affirmed as an appeals court judge, the Associated Press reported.

In the ruling, the court said the City of New Haven was wrong to throw away a fire department promotions exam because few minorities — no African-Americans and only two Hispanics — passed the exam.

The New Haven 20 does include at least one hispanic firefighter.

In its defense, the city said it feared lawsuits from minority groups.

This has been a half-decade legal battle, and this “reverse discrimination” ruling is likely to change hiring and promotion practices across the country as the court effectively removed legal standing from minority groups to file lawsuits if few minorities are hired or pass employment exams.

Justice Anthony Kennedy delivered the opinion of the court.

“There is no genuine dispute that the examinations were job-related and consistent with business necessity. The City’s assertions to the contrary are ‘blatantly contradicted by the record,’” Kennedy wrote.

“On the record before us, there is no genuine dispute that the (city) lacked a strong basis in evidence to believe it would face (legal) liability if it certified the examination results. In other words, there is no evidence — let alone the required strong basis in evidence — that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the city,” Kennedy wrote. “Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. The City’s discarding the test results was impermissible under Title VII (of the Civil Rights Act).”

Justices Scalia, Alito, Thomas and Chief Justice Roberts joined in the majority. Justices Ginsburg, Stevens, Souter and Breyer dissented. (click here to download the full court ruling)

“The overarching priority of Emerson College with respect to alcohol and other drugs is to ensure the safety and well-being of our students,” said Ron Ludman, dean of students at Emerson, in an email to the campus. “The College is committed to providing guidance so that students can learn to develop a responsible approach to social challenges, including whether to use alcohol, how to do so in moderation, and how to comply with local, state, and federal laws governing alcohol consumption.”

Ludman said that the college expects students to abide by the law and respect college policies governing drug and alcohol possession and consumption. “However, the College acknowledges there may be times when students may face medical emergencies involving excessive drinking and/or drug use. In these situations students are expected to call for assistance when concerned for their own health or welfare or that of another student,” Ludman said. “In order to encourage students to seek prompt and appropriate attention for alcohol or any other drug intoxication the College has instituted a “Medical Amnesty” policy.”

According to the policy: “Seeking medical assistance for oneself or a fellow student demonstrates responsible student behavior. When evaluating an alcohol violation the College will consider whether a student sought medical assistance for oneself or another person in need, and in most cases view the act of seeking medical assistance as good judgment and accordingly, not deserving of typical disciplinary sanctions.”

Therefore, Emerson students will not be subject to a disciplinary fine, hearing, probation, suspension or other punishment if they exercise good judgment and act in the medical best interests of themselves and their fellow students.

Students’ parents will still be called and students could be required to meet with the Emerson Counseling Center and Wellness
Educator in these cases.

Click here to read the entire Emerson College Medical Amnesty Policy

In the letter, Turner, who has faced scrutiny in the media and on the floor of city council for his criminal accusations, says the “media colludes with the government in prosecuting those who have been accused” and that “mass media outlets must be prohibited from spreading information that conflicts with the presumption of innocence. Legislation should create standards of financial responsibility in order to compensate inviduals (sic) whose right to presumption of innocence has been violated.”

Read it all, and respond in the comments section.

Five words, Councilor: “Congress shall make no law.”

December 12, 2008

Dear Governor Patrick,

I applaud your recent actions to convene a committee to explore methods of raising the ethical standards of behavior on the part of public officials. In a democratic society, it is essential to have such standards if government is to be able to secure the trust of the governed.

However, my recent experience with the judicial system raises a related set of ethical concerns not covered by the mandate given by you to your panel.  My concern is that the panel is not being charged to examine the related ethical issue of how do we protect the accused right to be presumed innocent until guilt has been proven.  This is essential to prevent the continued deterioration of our “justice system” given the collusion between government and the media to implant in the minds of the public the presumption of guilt.

Some scholars trace the concept of the presumption of innocence back to the book of Deuteronomy and the Quran. Book 4 of the Roman Code declares “Let all accusers understand that they are not to prefer charges unless they can be proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day.”

Article 11 of the Universal Declaration of Human Rights, whose sixtieth anniversary was celebrated on December 10th and which has been signed by the United States, declares “everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law.” The 5th, 6th, and 14th amendments to the Constitution of the United States establish the foundation for the principle in American jurisprudence.

However, due to the collusion between media and the prosecution at the local, state, and federal level, there is a trial in the court of public opinion that occurs long before the trial actually begins. This trial is conducted by the media based on unexamined evidence of guilt being presented to the media by the government.  Obviously, this process taints the fairness of our system of what we call criminal justice.

In my case, for example, an hour after I was arrested at 6:30 in the morning, the government gave the media a picture that allegedly shows me accepting cash which the government said was proof that I committed extortion. The media then performed its duty by sending the picture throughout the world as proof of my guilt. Yet, three weeks after my arraignment on a grand jury super indictment, my lawyers have still not had an opportunity to see the original picture let alone cross examine the person who is alleged to have taken it.

Meanwhile, columnists have unashamedly proclaimed my guilt. For example, in an amazing statement of the presumption of guilt, Joe Fitzgerald of the Boston Herald said in his November 25th column, “Even if he beats the rap, Turner has blown the chance to be what’s so urgently needed today, a leader to emulate, worthy of a kid’s emulation”.

Others like Joan Venocchi of the Boston Globe and Adam Reilly of the Boston Phoenix have countered my argument that the media doesn’t have a right to try me with the modern version of the old Flip Wilson one liner, “The devil made me do it”. Their excuse is the feds made them do it.

More specifically, Ms. Venocchi excuses the media’s behavior by pointing to the release by the US Attorney of “evidence” before I was even indicted. “There has also been noise about the release of the photograph on the day of his arrest, as if it’s unfair to show evidence of the alleged crime.”  The obvious question for Ms. Venocchi, is “How do you know it is evidence before it can be examined by my lawyers and the presenters cross examined?”

Adam Reilly also ducks behind the feds as if their abusive behavior justifies the media continuing the abuse when he says, “Second, Turner seems to think that the press actively wants to bring him down-when in fact, those of us who are covering Turner  are responding to a federal charge?” The question Mr. Reilly needs to answer is how is shipping an alleged picture of my alleged crime a response to the charge.  However, you and I know they will never have to respond to such questions.  In fact, they will probably try to construe my letter to you as further evidence of my guilt.

A month before that, 4,000 Polk County, Fla. residents were powerless when thieves ripped copper wire right off an electrical transformer, costing $500,000 to replace.

These cases and others, according to authorities, combine to form a very real threat to national security and American infrastructure.

“More and more since 9/11, we’re using intelligence to get our arms around emerging threats at the national level-not just when it comes to terrorism, but also in the criminal arena,” the FBI said in a statement recently. A recent FBI criminal intelligence report outlines the situation. It concluded that:

• “The demand for copper from developing nations such as China and India is creating a robust international copper trade,” and as the global supply of copper continues to tighten, “the market for illicit copper will likely increase.” From 2001 until 2008, the price of the metal has increased by more than 500 percent.
• The thieves-many of whom are drug addicts or gang members-may act individually or as part of organized groups and are interested in the quick cash they get from selling copper to scrap metal dealers.
• Their targets include electrical substations, railroads, security and emergency services, and other sensitive sites. Already, copper thefts have been responsible for shutting down railway systems and even 9-1-1 emergency systems.

“On the surface, it could be a relatively small theft,” said one FBI agent who specializes in major theft crimes and who commissioned the report after getting wind of the problem, “but the public safety impact could be significant.”

While the thieves may just be looking for a quick score and not mean to compromise national infrastructure, that’s just what’s happening, and the Feds are looking to find them and wrap thee thieves up heavy federal charges that include jail time.

The government has set up task forces between local, state an federal law enforcement agencies to combat the copper problem, which is particularly heavy in Nevada, where one thief now faces 20 years in prison.

“The increasing number of such crimes not only impacts the economy but threatens national security,” the FBI said Friday.

The man at the head of the opposition is the FBI’s Shawn Henry, recently appointed head of their Cyber Division. He told reporters Wednesday that the FBI has literally thousands of open cyber crime cases.

“One case in point: We joined our international partners yesterday in announcing a major takedown of a transnational criminal network that was buying and selling stolen financial information through an online forum known as ‘Dark Market‘,” the FBI said Friday.

“The business of the United States is done on the Internet,” said Henry, “And the information that flows electronically 24/7 is increasingly the target of not only identity thieves and scammers, but organized crime groups, terrorists, and overseas governments.”

Yes, even other countries are trying to virtually penetrate the U.S. Henry says about 24 different governments have an “aggressive interest” in obtaining information from or making attacks against American cyber infrastructure.

Henry says that individual hackers and crackers have grouped up into “virtual gangs.”

“In years gone by, if a gang wanted to rob a bank, it needed crooks with various skills — safe cracker, get-away driver, look-out, etc. That’s essentially what we’re seeing in the cyber world today, only these virtual gang members have never met in the physical world,” Henry said.

“There are organized groups that are very successful.”