Archive for September, 2000

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 would be a death sentence for the company.

Napster’s legal team, headed by Microsoft anti-trust star David Boies, filed written briefs with the court on September 13th that claim the recording industry has tried to use its stranglehold on music copyrights to force technology companies to acquiesce to 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 choke hold on music promotion and distribution,” Napster 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.  Judge 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 primary musical audio recordings within Section 1008 while excluding others’ musical works,” the lawyers wrote in the brief.

And they aren’t the only ones who seem to have problem with Patel’s decision.  Industry groups representing some of the world’s biggest technology and communications companies, including AOL, Sony and Yahoo!, filed briefs in August that condemned aspects of her ruling.

“The jduge went too far and misinterperted some very important areas,” says Jonathan Potter, executive director of the Digital Media Association.  The groups members includes AOL< Amazon and the MTV Group.

DiMA and other groups filed “friends of the court” briefs with the 9th U.S. Circuit Court of Appeals, which is weighing whether or not to uphold Judge Patel’s controversial decision.

Though the brief filing firms say they are not siding with Napster or the recording industry, the documents highlight possible conflicts within large corporations that include content and technology arms.

In a piece of delicious irony, Warner Music Group and Sony Music Entertainment, who were among the record companies suing Napster for copyright infringement, are represented by lawyers now filing briefs contesting Patel’s judgment. (Warner by AOL and Sony Music by their parent company Sony Electronics).

Only in America can we see such a high profile case of cutting off your nose to spite one’s face.  Now their lawyers are trying to spin doctor all of this and save face.  Good luck with that.

In their brief, the DiMA says Patel misapplied standards set by the Supreme Court in a 1984 case involving Sony Betamax.

Rather than answering the question of whether Napster has “substantial non-infringing uses”, the test set forth as the guiding principle in the Betamax case, Patel is incorrectly focused on the intent of Napster’s founders, and on the “preponderance of use” of Napster, according to Potter.

Patel’s standards could, in theory, render any number of on-line applications, and perhaps the Internet itself illegal, Potter says.

“The whole backbone of the Internet is available for copying-it enables transference of copies,” Potter says.  “Does that mean the internet itself could be illegal?  No, because it has substantial non-infringing uses.  But under Judge Patel’s ruling one could argue otherwise.”

This, along with Boies contention that “the recording industry is attempting, in this case, to try and maintain absolute control over distribution” are the focal points of the briefs.

He went on to point out that by repeatedly refusing Napster’s reasonable offers to license and opposing a compulsory license “they have demonstrated that they are not seeking to be appropriately compensated, but rather to kill or control a technology they view as competition”.

A San Francisco Federal Court of Appeals is responsible for digging through all of these issues, as intricate (and often times contradictory) as they are.

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