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.

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