You will be redirected back to your article in seconds

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.

More Digital

  • Alibaba Buys 8% Stake in Chinese

    Alibaba Buys 8% Stake in Chinese Video Platform Bilibili

    Alibaba has purchased an 8% stake in the Chinese online video platform Bilibili, the official Xinhua news agency reported. Bilibili is one of China’s top video streaming and entertainment platforms, with about 92 million monthly active users and 450 million page-views per day. Founded in 2009, it was listed on the NASDAQ last March. Alibaba’s [...]

  • Clevver-Logo

    Hearst Magazines Buys Clevver's Pop-Culture YouTube Channels After Defy's Demise

    Hearst Magazines has snapped up Clevver, a network of female-skewing lifestyle and pop-culture news YouTube channels that had been owned by now-defunct Defy Media. Clevver was left homeless after Defy’s sudden shutdown in November; its principals said at the time they were looking for a new home. Hearst Magazines sees a digital fit with Clevver’s [...]

  • "Brother" -- Episode 201-- Pictured (l-r):

    CBS Interactive's Marc DeBevoise on Streaming Boom, Content Strategy, and Apple

    Not everyone wants or needs to be Netflix to succeed in the streaming space. And not everyone sees Apple’s enigmatic new service as a threat. Even as rival streaming services offer gobs of content, CBS Interactive’s president and COO Marc DeBevoise sees the company’s targeted original programming strategy continuing to attract viewers to its All [...]

  • Rhett-Link-Good-Mythical-Morning

    Rhett & Link's Mythical Entertainment in Talks to Acquire Smosh (EXCLUSIVE)

    Smosh, the YouTube comedy brand left stranded after parent company Defy Media went belly-up, may be about to get a new business partner. Mythical Entertainment, the entertainment company founded by top YouTube comedy duo Rhett & Link, has been in talks about acquiring the Smosh brand, sources told Variety. Multiple potential buyers came forward to [...]

  • Pokemon Go

    Proposed 'Pokémon Go' Lawsuit Settlement May Remove Poké Stops, Gyms

    A proposed settlement in the class action lawsuit against “Pokémon Go” developer Niantic could remove or change a number of Poké Stops and Gyms in the popular augmented reality game. The proposed settlement was filed in a California court on Thursday and applies to anyone in the U.S. who owns or leases property within 100 meters [...]

  • Skyline of Doha at night with

    Qatar's beIN Rallies Support From U.S. Companies Against Pirate Broadcaster beoutQ

    Qatari powerhouse beIN Media Group has rallied support from American sports and entertainment entities, including Discovery and Fox, behind its request that the U.S. government place Saudi Arabia on its watch list of top intellectual property offenders. The Doha-based broadcaster, a state-owned spinoff of Al Jazeera news network, accuses the Saudi government of harboring pirate broadcaster [...]

More From Our Brands

Access exclusive content