Napster: Law Protects Our Software

Published July 4th, 2000 - 02:00 GMT

Napster Inc. filed its much-awaited reply brief today, contesting the Recording Industry Association of America's (RIAA) hoped-for shutdown of the music-sharing service, Newsbytes.com reported.  

The RIAA had asked a US District Court in San Francisco to issue a preliminary injunction that would effectively close the lid on Napster's current business model.  

In its 44-page reply brief, which shows newly retained David Boies as lead counsel, Napster makes several arguments in opposition to the RIAA's motion.  

The first point asks the court to do what no court has ever done before: Napster wants the court to put on hold the notion that private non-commercial sharing of music by consumers is unlawful. Second, Napster says that the RIAA is asking the court to unfairly hold an Internet directory service liable for its users' actions. Third, Napster contends that the court is being asked to extend copyright protection judicially to stifle new technology.  

The RIAA had filed suit against the popular software provider on behalf of 18 major record companies in December, accusing Napster of "contributory and vicarious copyright infringement" resulting from the provision and use of Napster file sharing technology.  

In mid-June, the RIAA filed a motion with the U.S. District Court stating that RIAA members would suffer "irreparable harm" if Napster were not stopped from continuing to conduct business while the legal case is in progress. The RIAA cited reduced record sales since Napster users are getting the music for free, rather than through retailers.  

Napster has denied that RIAA members would be hurt if the injunction were not granted. Napster says that the overwhelming weight of the evidence, including data from the RIAA's own experts, proves that Napster's presence would significantly increase record sales.  

Napster says that even if there were harm, such harm could not be stopped without shutting down the Internet itself, because of other free file-sharing technologies such as Gnutella.  

Napster further says that users of Napster software are downloading music for their own personal use, and the Audio Home Recording Act of 1992 (AHRA) expressly makes noncommercial use by a consumer immune from liability for copyright violation.  

Napster claims that to exclude digital musical recordings within the immunity provisions of the AHRA would run counter to the clearly expressed congressional intent.  

Napster says that as long as a technology is capable of substantial non-infringing uses, a provider making that technology available cannot be liable for copyright infringement even where it may have encouraged infringing uses and the technology may in fact have been used for infringing activity.  

This case law, known as the Sony Doctrine, would apply, according to Napster lawyers, if there is a single potential non-infringing use of social or commercial importance. Napster claims that its software has many such redeeming social and commercial values.  

In response to the RIAA's claim that Napster contributes to copyright infringement by making its software freely available, Napster says that it has no knowledge of specific direct infringements, saying that Napster is in a position similar to an ISP (Internet service provider) that has generalized, but no actual knowledge of what works are copyrighted and how these copyrights are being infringed.  

Napster says quite explicitly in its reply brief that it does not dispute that copyrighted materials may be indexed, linked to, and exchanged using Napster technology. But, says Napster, that's the way it is with any ISP.  

In a bit of reverse finger-pointing, Napster says that the RIAA has known of the existence of software for creating MP3 files for years, and that making MP3 files from CDs is the most popular means by which sound recordings become available over the Internet, yet the RIAA did nothing to stop or slow down the widespread proliferation of MP3 files. Therefore, Napster's argument goes, it's unfair to now pick on Napster.  

Napster even goes further in its allegations against the RIAA, claiming that the RIAA's legal maneuvering against Napster is less for enforcing intellectual property rights than to control the flow of competing unsigned artists' music into the electronic marketplace, and "the means of and business model for distributing music over the Internet."  

Napster says that an injunction against it would violate the First Amendment of the US Constitution, and would require Napster to take down its directory that provides users with a list of other users, and the law is clear that such directories are entitled to First Amendment protection.  

Napster also contends that the public interest would be harmed by an injunction against Napster. In every instance in which new technologies have been perceived to threaten the entrenched interests of copyright holders, the law has sided with the technology, and both the public and the copyright holders have benefited, Napster contends.  

A hearing on the RIAA's motion is set for July 26, and there is still time for the RIAA to respond to the brief that Napster filed late today -- (Several Sources)

© 2000 Al Bawaba (www.albawaba.com)

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