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Cuckoo Egg FAQ

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Section I - Cuckoo Eggs

1.0 - What is a Cuckoo Egg?

A Cuckoo Egg is an MP3 file that resembles a copyrighted song that is being distributed without the copyright holder's authorization. A Cuckoo Egg will typically contain the initial 30 seconds of the real song with the rest of the song being overwritten by some non-copyrighted material such as white noise or a repeating cuckoo clock sound effect. Cuckoo Eggs will have the same playing time and file size as the song it purports to be.

1.1 - How are Cuckoo Eggs created?

Please refer to the document "How to Lay Cuckoo's Eggs" found on the resource page.

1.2 - How can Cuckoo Eggs be detected?

At present, Cuckoo Eggs are detectable only by actually listening to the file.

1.3 - Can Cuckoo Eggs be used abusively?

Yes. It is possible for malicious individuals to nefariously create Cuckoo Eggs out of copyrighted works that are not licensed for distribution online.

1.4 - How can I protect myself against Cuckoo Eggs?

By obtaining copyrighted material through official distribution channels. For most music, that means purchasing a CD either directly from the artists website (preferably) or through a retailer. For free MP3 files, download them from the artist's website or from a publisher such as MP3.com.

1.5 - What systems are vulnerable to Cuckoo Eggs?

Any peer-to-peer file sharing network that has no provisions for file authentication. Napster, Gnutella, and similar networks fall under this category.

Section II - Legal Issues

2.0 - What is fair use?

Fair use (17 USC 107) is a limitation on the exclusive rights of the copyright holder. Fair use laws protect individuals from abusive prosecution by copyright holders. In essence, fair use states that under certain circumstances, it is ok to use copyrighted material without authorization. In judging whether fair use applies, courts look at four criteria: 1) the purpose and character of the usage, 2) the nature of the work, 3) the amount of the work used, and 4) how the usage effects the value of the work.

It should be obvious at this point that fair use is vague and difficult to understand. Also, it is important to note that fair use is a defense. Claiming that a particular usage falls under fair use does not mean that usage is fair use. It is up to the courts to decide if fair use applies or not.

2.1 - Are Cuckoo Eggs legal?

No. However, 1) Cuckoo Eggs are meant to deter piracy and 2) Cuckoo Eggs only use a short sample of the copyrighted work. Because of this, Cuckoo Eggs are more likely to fall under the terms of fair use than the trading of MP3s containing full copyrighted works. Therefore, while Cuckoo Eggs and MP3s of copyrighted works are both illegal, the trading of Cuckoo Eggs is more defensible than the trading of MP3s of copyrighted works.

2.2 - Is it legal to share songs online?

No, unless you were explicitly given license to distribute the song by the copyright holder. Under the terms of 17 USC 106, the distribution of copyrighted works is an exclusive right of the copyright holder.

A common misconception is that sharing songs is legal if you own the album that the song came from. This is untrue. Purchasing an album on CD or tape does not give you ownership of the copyright. Therefore, you do not have the right to share songs online even if you own the album that the song is from.

2.3 - Is it legal to download songs?

No, unless the song is licensed for free distribution online. The misconception is that downloading songs is no different from recording a song to an audio tape or to a Mini-Disc.

Consumer audio recording devices such as audio cassette tape recorders and Mini-Disc recorders are covered under the Audio Home Recording Act of 1992. What this means is that 1) the devices are registered with the US Copyright Office, 2) for every device and piece of media sold, statutory royalties are played and 3) when relevant, devices are prevented from making anything other than first generation copies by implementing a serial copyright management scheme, or SCMS. The important point here are the royalties. Essentially, paying the royalties means that both the manufacturer of the recording device and the consumer who purchases it are granted immunity from any copyright infringement suits that may have otherwise been brought against them.

There are three important points to keep in mind. First, the AHRA does not state that copying is legal; it only grants immunity from copyright infringement suits. Second, the AHRA only offers immunity insofar as the copies were made for personal use (ie. - not shared). Third, general purpose devices such as computers and computer CD-R/CD-RW drives are not covered by the AHRA anyway.

2.4 - Is Napster legal?

Categorically, no. Although there are artists and copyright holders who have publicly stated that they do not mind their music being traded through Napster's networks, there are still artists and copyright holders who have publicly stated that they do not want their music traded through Napster's networks. Therefore, there are still copyrighted works that are being traded through Napster's networks without the copyright holders' authorization. Thus, copyright infringement is occurring on Napster's networks. Thus, usage of Napster is not legal.

At the time of this writing, the 9th Circuit Court of Appeals has granted a stay on the injunction against Napster. This does not mean Napster is legal, however. The legality of Napster will not be established until a verdict is rendered in the currently pending lawsuit between the RIAA and Napster Inc.

Section 3 - Motivation for the Cuckoo Egg Project

3.0 - What are our views on the trading of music online?

We are not against people downloading music from the web, what we are against is downloading material without the artists' consent and without consideration of fair compensation. Considering the number of alternative on-line sites available for the music fan and musicians to meet and share their passion without one exploiting the other it makes no sense to promote a flawed site such as Napster.

In fact perhaps music fans should consider finding/picking a particular musician/band that they love and then get involved in promoting and assisting them. the time It's easy to tout Napster as the great hope to slay the evil record industry but in it's current state we will be replacing one form of exploitation with another.

3.1 What are our views of the recording industry and major labels?

This is a complicated question. The main thing to understand regarding our views is that this site is not intended to support the record industry. We do acknowledge that while they often take advantage of and exploit artists and consumers, they have also enabled  many musicians make a living at their craft. The bottom line is they need to alter their business model and create a more equitable one for both their employees and their customers.

The notion that Napster helps musicians and hurts the greedy record industry (& artists) who deserve to be punished and therefore should be praised doesn't cut it for us. To use a cheesy metaphor - "You don't throw out the baby with the bathwater".

As a side note we should mention that we don't receive funding from them or for that matter - from anyone.

3.2 - Where did the concept for the project come from?

Being married to Stefanie Fix, a musician, it's only natural that I would be aware of Napster and the issues surrounding it. We have spent many nights discussing our concerns regarding the developing internet technologies and how they would affect her ability to make a living.

We decided to find a way to give others who shared our concerns the ability to participate in fighting for their just rewards. In the end, the inspiration came directly from all of our daily struggles to keep the bills paid while still pursuing our passions. The end result was the idea for the Cuckoo Egg Project. From inspiration to going live took barely a week  - the eggs began hatching late in the evening on June 10th.

3.3 - Isn't  this just a promotional device for Stefanie Fix?

While a number of additional people may have heard Stefanie's music and the hits to her website have increased, she has also taken a fair amount of heat as a result of her willingness to allow her music to be used in the first batch of eggs. Remember, most of the folks who heard her music didn't want to hear her music and were expecting to hear something completely different. In creating the false artist file names we didn't just label it as artists that sounded like her, thereby reaching out to her audience, instead we labeled it as everything! Not a lot of Kid Rock or Black Sabbath fans that can appreciate a good old folk/pop tune, eh?

Another thing to bear in mind in regards to Stefanie and this being her gravy train - when we started the project we wanted to use music from artists who had given us the approval to use their music. All of the bands and or musician friends we initially approached said, great idea - we support you, however, his was generally followed by their saying they didn't want to participate for fear of the backlash. Others got bogged down in band meetings about differences of opinion about what to do and never gave the ok.

There have been other negative repercussions to Stefanie's choosing to be involved. To read a story related to some of them check out the Upside.com article.

Sections 1 and 2 compiled by Wesley H. Tomatsu - tomatsu@oxy.edu - Thanks Wes!