US government deals Napster a blow

In a friend of the court brief filed with the US Court of Appeals in California on Friday, the US Copyright Office said that Napster's service falls outside of the definitions used in the Home Recording Act, which allows the public to make copies of music for personal use.

The brief is not binding, but appears to bolster the validity of a lower court ruling against Napster in July, in which US District Court Judge Marylin Hall Patel determined that the company's service had contributed to the widespread violation of copyrights. Napster's service allows users to freely exchange digital recordings of songs over the Internet. Patel issued a preliminary injunction requiring Napster to prevent its members from trading copyrighted material -- a requirement that Napster argued was technically unfeasible and would effectively shut the service down. Napster appealed the ruling and was granted a reprieve a few days later by the US Court of Appeals, which stayed the injunction pending the outcome of Napster's appeal.

The Copyright Office said it filed the friend of the court brief, or "amicus curiae," because it has an obligation to provide courts with "information and assistance" on issues related to copyright cases. The brief was co-submitted with the civil division of the US Department of Justice, and the US Patent and Trademark Office.

In it, the Copyright Office argued that Napster's service isn't protected by the Home Recording Act because users exchange music using personal computers and hard disks, and not using any of the devices specified in the Act. Furthermore, the Copyright Office said, by downloading music files to a personal computer, Napster's users are not creating "digital musical recordings" in the strict sense that was defined in the 1992 Act.

Two weeks ago, a coalition of IT and consumer electronics companies, including the 600-member Consumer Electronics Association, submitted a friend of the court brief of their own in which they criticised the decision against Napster.

In the brief, the groups criticised Judge Patel, arguing that she had misinterpreted and misapplied laws in the case. The brief also said her ruling infringed on the US's First Amendment right to freedom of speech and threatened future technological innovation on the Internet.

Napster's appeal is due to be heard in the first week of October before a three-judge panel in San Francisco, a spokesman for the company said today.

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