G-MEN, 20 FIRMS TAKE ON NAPSTER
The federal government opined on the closely watched case against Napster for the first time Friday, saying the music-sharing service is not protected under a key copyright law, as the company has claimed.
In briefs to the 9th U.S. Circuit Court of Appeals, lawyers for the U.S. Copyright Office said Napster has "no possible defense" against claims by the recording industry that it facilitates widespread copyright infringement.
The Copyright Office sided with U.S. District Court Judge Marilyn Hall Patel, who in July ruled against Napster, finding that online file-swapping company is contributing to widespread copyright infringement in violation of the 1992 Audio Home Recording Act. Napster's defense has been that it is immune to the same law.
"Napster asserts...the Audio Home Recording Act provides its users with immunity from liability for copyright infringement and, in so doing, relieves Napster itself from any derivative liability for contributory or vicarious infringement," government lawyers wrote. "The District Court was correct to reject that defense."
The government's briefs came four weeks before a three-judge panel of the circuit court hears the case in San Francisco.
The RIAA and the National Music Publishers Association have filed court briefs Friday backing the government's position.
"Napster's latest defense is yet another veiled attempt to reinvent itself, its legal position and copyright law," said hilary rosen',390,400);">hilary rosen',390,400);">Hilary Rosen, RIAA President/CEO. "The fact is—the law is on our side. We are not suing a technology. We are suing a company that is stealing work that does not belong to them. They cannot build a multi-billion dollar business on the backs of other people's works."
Rosen concluded, "We're confident that the appellate court will uphold Judge Patel's carefully considered findings."
In its filing Friday, the government wrote that the Audio Home Recording Act protects consumers who copy protected works for personal consumption, not public or commercial distribution.
"We noted with interest that the government, in focusing only on the AHRA, explicitly chose not to take a position regarding Napster's liability and did not address the Sony Betamax precedent, the DMCA or any other issue raised in the case," said David Boies, attorney for Napster. "We have great respect for the Department of Justice, but in this instance we believe their position is incorrect."
Along with the RIAA and the NMPA's filings, 20 groups from movie, music, software, publishing and sports industries Friday filed a brief urging the federal appeals court to affirm a decision blocking Napster from offering its song-swap service on the Internet.
Calling the group "the backbone of America's creative community," Motion Picture Association of America President Jack Valenti said Napster's service amounts to "the theft of copyrighted materials."
"We call on the court to recognize that America's creative communities must be able to protect their artistic works," Valenti said in a statement.
In related Napster news, digital media measurement experts Media Metrix showed that users on the song-swapping site quadrupled. According to Media Metrix numbers, Napster home users climbed from 1.1 million unique users in February 2000 (the first month it tracked the application) to 4.9 million unique users in July. Napster's use at work also doubled—and not just at the HITS offices either—from 417,000 unique users in May 2000 to nearly 887,000 users in July.
Though Napster claims more than 20 million users, Media Metrix tracks usage by unique users—who are only counted once—or the number of total users who used the software application once in the given month.
But any way you crunch the numbers, that's good news. Er, or it would be, if it weren't for this lawsuit business.
"While Napster has not yet gained widespread popularity similar to other music-related applications such as multimedia players," said Media Metrix Senior VP Bruce Ryon, "it is proving to be a seminal application capable of rapid growth and influence on the sharing and distribution of music files. Why, the only thing that could possible stop this trend now would be an act of God, or a court order or something like that."
