Napster adds charge to defense in filing

Company claims judge erred, court out of bounds

Napster filed a legal brief with the 9th U.S. Circuit Court of Appeals on Friday that revisited two of the embattled file-sharing ‘Netco’s previous defenses — and added a third.

The new element in Napster’s defense centers on the refusal by U.S. District Court Judge Marilyn Patel to consider an evidentiary hearing. Napster says the judge erred by placing the burden of proof on Napster rather than the complainant — the Recording Industry Assn. of America — and that the court ignored any uncertainty in the conflicting studies on Napster usage. Also, the brief states, the court overstepped its bounds by asking Napster to create a centralized database that it claims would eliminate the peer-to-peer sharing upon which the service is based.

Napster also claims it wasn’t liable for contributory copyright infringement and its users weren’t liable for direct copyright infringement. The company itself claims to be protected by Section 1008 of the American Home Recording Act and all that non-commercial copying by its users is permissible under the 9th Circuit’s ruling in the Diamond Rio case.

Citing the Sony Betamax case, Napster also claims its file-sharing represents “fair use” and notes that a company that makes a product that’s capable of non-infringing uses can’t be liable for infringing uses. According to Napster, these non-infringing uses stretch from “sampling” music to “space-shifting” music to the distribution of music that has authorized by the artists who created it.

After attorney Jonathan Schiller (David Boies’ partner) outlined Napster’s legal defenses at a early evening conference call, CEO Hank Barry reminded that he’s still trying to work out an agreement with the record industry.

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