Napster continues fight against music labels

7Late last week, Napster's lawyers released a copy of a much anticipated brief that spells out the company's objections to Chief US District Court Judge Marilyn Hall Patel's injunction against the site.

The judge's July decision announced in the Northern District of California had the potential of forcing Napster to remove all music by artists represented by the record labels that are part of the suit. While an appeal against the judge's injunction allowed Napster to temporarily continue operations, the Friday brief is part of the company's attempt to remove any question of the legal validity of the system it uses - namely noncommercial peer-to-peer file sharing of copyrighted and/or not copyrighted material.

In the brief, Napster outlined several key objections to the judge's ruling, saying that it would be impossible to comply with the judge's order to remove the designated, copyrighted files. The company contends that the architecture of the Napster model makes identifying copyrighted and not copyrighted material extremely difficult.

In addition, lawyers representing the music-trading site argued that Judge Patel did not adequately consider past legal precedents applicable to the case and that Patel underestimated the impact of peer-to-peer file sharing in the internet marketplace.

"Napster cannot comply with the District Court's order as drafted and continue to operate its peer-to-peer system. More generally, if the decision of the District Court is permitted to stand, every new technology used to transmit, route or exchange data subject to the laws using the internet - and many existing technologies - will be affected," the Napster brief said.

Napster's client software, which can be downloaded at no charge from its website, gives users access to hundreds of thousands of MP3 titles and provides a means of freely distributing the music files between members of the "Napster community."

The RIAA, representing several major music labels in the suit, objects to the trading of files where the plaintiffs in the case own the copyright. Napster, however, contends that all of the file swapping operates on a noncommercial basis and is directly done by users and not the company itself.

The legal brief claimed that the District Court's earlier injunction would force Napster to redesign its technology, depriving Napster users of the peer-to-peer technology. The San Mateo, California-based vendor also stated that 98 percent of the music on the site does not belong to the plaintiffs and that altering its technology to accommodate the plaintiffs would disrupt the model of business Napster currently conducts.

"File names often do not distinctly identify the artist, the song, the title, or whether the music is from a CD (in which the plaintiff recording companies may own the rights) or a recording of live concert (which many artists allow to be freely circulated widely and in various media for promotional reasons)," the Napster brief stated.

Leonard Rubin, head of intellectual property for Chicago law firm Gordon & Glickson, said that Judge Patel's request to distinguish between the copyrighted titles and those not owned by the music labels traditionally holds a fair amount of merit in similar types of cases. He noted that Napster's defense on these grounds would likely only stand if the company could show that the effect of altering the technology would be devastating to a large segment of society. He said the company would need to demonstrate that changing the technology - which Napster created - would be unfair to the public sector.

"It seems that it is a weak point to raise," Rubin said.

The defendants claimed that when the rock band Metallica - a well-publicised objector to Napster - attempted to identify copyrighted songs earlier this year, the group mislabelled tens of thousands of authorised recordings.

In its brief, Napster called for the court to reverse the injunction issued last month and to issue a ruling that would more definitively address peer-to-peer technologies. Napster questioned the judge's decision to require the plaintiffs to post a $US5 million bond in the July hearing, claiming that the figure seemed markedly low when the court estimated Napster's value at between $US60 million and $80 million.

Napster also cited the Audio Home Recording Act (AHRA) which the company said clears all noncommercial consumer copying of music in digital or analog form. Judge Patel relegated the AHRA precedent to a minor position in the proceedings because the RIAA had not brought claims under this act. Napster, however, said that this act applies to all copyright infringement suits regardless of whether or not the parties involved cite the precedent.

"Napster respectfully requests that this Court reverse and vacate in its entirety the injunction issued by the District Court," the brief concluded.

The company also claimed industry support from large vendors such as Intel and Yahoo that peer-to-peer technology will revolutionise company models for doing business on the Web.

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Ashlee Vance

PC World
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