Napster Goes on the Offensive

In a fight for its life, Napster files final written arguments claiming that the recording industry has bullied technology companies and that a federal judge reinterpreted the law.

In a fight for its life, Napster files final written arguments claiming that the recording industry has bullied technology companies and that a federal judge reinterpreted the law.

In what could be a last great act of defiance, Napster lawyers filed their final written brief before the copyright infringement case goes to trial.

The brief accuses the recording industry of withholding licensing, and disputes claims that the company’s file-trading application violates copyright law.

Napster is trying to stave off a potential 9th U.S. Circuit Court of Appeals order that would shut down its file-trading service, which could be a death sentence for the company.

Napster’s legal team — headed by Microsoft antitrust trial star David Boies — filed written briefs with the court on Wednesday that claim the recording industry has tried to use its stranglehold on music copyrights to force technology companies to acquiesce to its demands.

“This case is about whether the plaintiffs can use their control of music copyrights to achieve control over Napster’s decentralized technology and prevent it from transforming the Internet in ways that might undermine their present chokehold on music promotion and distribution,” Napster’s lawyers wrote in the brief.

The brief also reinforced their belief that both the Audio Home Recording Act of 1992 and the 1984 Sony Betamax case protect the file-trading application.

Napster’s defense lawyers argued that Section 1008 of the AHRA protects the file-trading network. Patel has dismissed that argument, finding that the AHRA applies only to physically manufactured products such as portable music players, and does not extend to software applications.

“There is no suggestion in the legislative history (of the AHRA) that the intent was to include only some primarily musical audio recordings within 1008 protection and to exclude other primarily musical works,” the lawyers wrote in the brief.

The federal government, along with entertainment industry groups, filed legal arguments against Napster Sept. 8, arguing that the music-sharing service did not fall under the protection of the AHRA.

Twenty “friend-of-the-court” briefs accompanied the document filed by the United States Copyright Office. The Recording Industry Association of America, which is suing Napster, also filed briefs on Sept. 8, with the 9th U.S. Circuit Court of Appeals backing the government’s position.

Boise’s team also took umbrage with what they believe was Judge Marilyn Patel’s reinterpretation of the 1984 Sony Betamax case, which found that technologies with substantial non-infringing uses could not be banned.

In the brief, Napster’s legal team argued that the file-trading application can be used to “space shift” digital music — allowing users to digitize their music by downloading music files from Napster that they already own in CD formats to store onto their computer hard drive.

Several trade organizations which included the Consumer Electronics Association and the Digital Media Association came out in support of Napster in the company’s legal battle, arguing that Patel misinterpreted the 1984 Sony Betamax case.

The current legal wrangling came to a head on July 26 when Judge Patel issued a temporary injunction that would have shut Napster down. Less than two days later, the appeals court granted the company a stay while the court examined Patel’s ruling.

Final arguments will be heard by the appellate court on Oct. 2.

Author: Brad King

News Service: Wired News


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