×
You will be redirected back to your article in seconds

Napster appeal cites performance of judge

Company claims judge erred, court out of bounds

Same arguments, different venue. Napster filed a brief with the 9th U.S. Circuit Court of Appeals on Friday that revisited two of the embattled file-sharing Internet company’s previous legal defenses — and added a third.

First, Napster contends that it’s not liable for contributory damages and its users aren’t liable for direct copyright infringement. The company claims to be protected by Section 1008 of the American Home Recording Act, and that all noncommercial copying by its users is permissible under the 9th Circuit’s previous ruling in the Diamond Rio case, which held that MP3 players were legal.

The Recording Industry Assn. of America (RIAA) and the National Music Publishers Assn. (NMPA) –which brought the action against Napster — counter that computer hard drives aren’t protected by the AHRA because they aren’t “digital recording devices” and, according to the ruling in the Diamond case, MP3 files that reside on another Napster user’s hard drive aren’t “digital musical recordings,” either.

A matter of degree

The RIAA adds that there’s a big difference between making a few copies for your friends and family and wholesale distribution.

Napster’s second contention is that its file-sharing constitutes “fair use.” Citing the Sony Betamax case, it claims a company that makes a product that’s capable of substantial noninfringing uses can’t be liable for infringing uses.

According to Napster, these noninfringing uses stretch from “sampling” music to “space-shifting” music to distributing music that’s been authorized by the artists who created it.

License to listen

The RIAA and NMPA counter that even if Napster users are merely “sampling” (test-listening) — and the actual level of this activity has yet to be quantified accurately — a company still needs a license to reproduce copyrighted works, and there are countless other opportunities to “sample” music available to consumers via authorized streaming audio sites.

The RIAA and NMPA add that a literal application of Napster’s “space-shifting” argument would require users to log on — and leave on — their home computers in order to play songs on their work computers; and how many users are doing that? Furthermore, they maintain that a looser definition of “space-shifting” — playing music that you own on a CD at home from another Napster user’s hard drive — is analogous to being able to walk out the door with a record from a store in Los Angeles because you already bought a copy that you left at your New York City home.

As far as Napster’s distribution of authorized music goes, the RIAA and NMPA note this amounts to somewhere between 2% and 13% of the traffic on the service.

Ongoing service?

Back on the “fair use” front, the RIAA and NMPA assert there’s a major difference between the one-time sale of a product to the public — such as a videocassette recorder — and providing an ongoing service.

The fresh element in Napster’s brief centers around U.S. District Court Judge Marilyn Patel’s refusal to consider an evidentiary hearing. Napster says the judge erred by placing the burden of proof on Napster rather than its adversaries, ignored any uncertainty in the conflicting studies on the service’s usage — many observers find each side’s methodologies deeply flawed — and overstepped her court’s bounds by asking the company to create a centralized database that would eliminate the peer-to-peer sharing on which the service is based.

Expect the RIAA and NMPA to counter these last charges when they file their response on Sept. 8.

Meanwhile, after attorney Jonathan Schiller (David Boies’ partner) outlined the company’s legal position at an early-evening conference call, Napster CEO Hank Barry reminded everyone that that he’s still trying to work out an agreement with the record and music publishing industries.

More Digital

  • Vaccination

    YouTube Yanks Ads From Anti-Vaccination Conspiracy Channels

    YouTube, under fire for facilitating the spread of conspiracy theories and other misinformation, said it will no longer serve ads on channels that espouse anti-vaccination rhetoric. The Google-owned video giant cited its advertising policy that bans “dangerous and harmful” content from eligibility in its monetization program. “We have strict policies that govern what videos we [...]

  • Evan Williams, Twitter founder (R) and

    Twitter Co-Founder Evan Williams Steps Down From Company’s Board

    Twitter co-founder Evan “Ev” Williams is stepping down from the company’s board, Twitter announced in a SEC filing Friday afternoon. Williams will depart from the board at the end of this month, according to the filing. “It’s been an incredible 13 years, and I’m proud of what Twitter has accomplished during my time with the [...]

  • Facebook Logo

    Facebook Shuts Down Controversial Ovano VPN App

    Responding to a continued backlash over its data collection practices, Facebook pulled the plug on its Ovano VPN app Friday. Ovano, which promised users an added level of privacy while using public Wifi hotspots, was used by Facebook for market research purposes. Facebook removed the app from the Google Play store Friday, and the company [...]

  • Smosh

    Smosh Acquired by Rhett & Link's Mythical Entertainment

    UPDATED: Smosh, the long-running YouTube comedy brand, has been acquired by Mythical Entertainment, the company formed by Rhett & Link, hosts of comedy show “Good Mythical Morning.” As first reported by Variety last week, Mythical emerged as the leading candidate to buy Smosh, which was left stranded after parent company Defy Media shut down without [...]

  • China Video Streaming Giant iQIYI Loses

    Chinese Video Giant iQIYI Loses $1.3 Billion in 2018

    Chinese video streaming firm iQIYI lost over $1.3 billion in 2018, as revenues and subscriber numbers ballooned. The deepening losses reflected ever higher spending on original content production. Announcing its first full-year financials since a March IPO that launched it onto the NASDAQ, iQIYI said that it lost $1.3 billion (RMB9.1 billion) last compared with [...]

  • Roku headquarters

    Roku Aims to Top $1 Billion in Revenue in 2019, Beats Holiday Quarter Earnings Expectations

    Roku wants to become a billion-dollar company in 2019, and invest more in its ongoing international expansion. The streaming-device maker told investors on Thursday that it expects to generate between $1 billion and $1.025 billion this year, and that international growth was one of its key investment areas for 2019. Roku made these announcements as [...]

More From Our Brands

Access exclusive content