RIAA urges appeals court to uphold Napster ruling

The legal battle between the recording industry and Napster Inc. heated up Friday, when the Recording Industry Association of America (RIAA) urged a federal appeals court to uphold a ruling that would effectively shut down Napster’s Internet-based music file sharing service.

In a flurry of legal activity surrounding the case, the U.S. government, the Motion Picture Association of America and the Business Software Alliance also chimed in on the case on Friday, by each filing friend-of-the-court briefs supporting the recording industry’s case.

In its brief filed with the federal appeals court in San Francisco, the RIAA argued that U.S. District Court Judge Marilyn Hall Patel was correct when she ruled on July 26 that Napster’s file-swapping service contributes to copyright infringement on a massive scale and issued a preliminary injunction against the company.

The injunction required Napster to stop its users from trading copyrighted songs using its service. Napster said the requirement was technically impossible and would effectively shut the service down. The company turned to the U.S. Court of Appeals for the Ninth Circuit in San Francisco, which issued a reprieve by delaying the injunction pending the outcome of Napster’s appeal.

In its 74-page brief Friday, the RIAA’s lawyers urged the appeals court to reinstate the injunction against Napster immediately. They restated many of the opinions offered by Judge Patel in her ruling, in which she dismissed all of Napster’s key defenses.

Napster’s service allows users to trade digital music files in violation of copyright laws, the RIAA’s lawyers wrote, and Napster knowingly facilitates this illegal swapping with the intention of profiting from it, making the company also liable.

“Every day, Napster enables, encourages, and directly benefits from the infringement of 12 (million) to 30 million copyrighted works,” the RIAA said in its brief.

The brief, which had been expected, was co-submitted with the National Music Publisher’s Association and is intended to sway the opinion of the appeals court when it convenes at an October 2 hearing to decide Napster’s fate.

The RIAA filed its lawsuit against Napster in December last year on behalf of the major record labels it represents. In a statement Friday, Hilary Rosen, president and CEO of the RIAA, professed confidence that the appeals court will find in the recording industry’s favor.

“We are not suing a technology,” Rosen said. “We are suing a company that is stealing work that does not belong to them.”

Napster couldn’t immediately be reached for comment. The company submitted its own brief to the appeals court on August 18, in which it denies the charges against it and highlights what it views as a series of flaws in the lower court’s ruling.

Among the objections, Napster’s attorneys argued that Judge Patel misinterpreted copyright laws in reaching her decision and underestimated the impact that so-called “peer-to-peer” file-sharing services will have on the Internet.

The company also argued that its service is protected by the Home Recording Act of 1992, which allows users to make recordings of music for personal use but not for commercial distribution. If Napster’s users are not violating the Home Recording Act, then Napster itself is also protected because it merely provides a service to facilitate the recording, the company has argued.

That defense appeared to suffer a blow Friday when the U.S. Copyright Office chimed in on the case, in a brief co-submitted with the civil division of the Justice Department and the U.S. Patent and Trademark Office. The government’s brief argued that Napster’s service is not protected by the Home Recording Act, in part because the Act does not apply to music that is copied using PCs and hard drives.

Napster attorney David Boies, in a brief statement issued late Friday, called the government’s position “incorrect.”

The government’s brief took no position on other matters Napster has raise in its defense, he noted, including Napster’s claim that it is protected by the Digital Millennium Copyright Act and a 1994 case involving Sony Corp.’s Betamax video cassette recorder (VCR). In that case, Sony was found not guilty of copyright infringement because VCRs can be used for legitimate purposes besides the illegal pirating of movies.

Also on Friday, a separate friend of the court, or “amicus,” brief supporting the RIAA was submitted by the Motion Picture Association of America, along with 19 other groups representing creative artists. Yet another amicus brief backing the recording industry was submitted by the Business Software Alliance, whose members include Adobe Systems Inc., Apple Computer Inc. and Microsoft Corp.

It is up to the appeals court how much weight they give to any of the amicus briefs submitted. The briefs submitted by the RIAA and by Napster will be given greater consideration because the two parties are involved directly in the case.

Napster isn’t without advocates. In late August a broad coalition of industry groups representing high technology and Internet companies filed a handful of amicus briefs with the appeals court in which they make arguments that support Napster’s defense.

Some of the groups involved, which include the powerful Consumer Electronics Association, echoed Napster’s own arguments that Judge Patel misinterpreted copyright laws in reaching her ruling. They also contend that, if left to stand, her ruling against Napster will establish a troublesome precedent that could stifle the development of new Internet services and technologies.

The RIAA has posted its brief on the Web, at http://www.riaa.com/pdf/Napster09082000.pdf/.

Napster, based in San Mateo, Calif., can be reached at http://www.napster.com/. The RIAA, in Washington, D.C., can be reached at http://www.riaa.com/.

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