Napster details copyright case defence

Music giants just out to beat up on little Napster claims Boies

By Tony Smith, 4th July 2000

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Napster will play the 'industry chiefs will do anything to stay in charge' card when it battles the copyright infringement case brought against it by the Recording Industry Association of America (RIAA).

Napster's lawyer, David Boies - he of Microsoft anti-trust trial fame - yesterday outlined the software company's defence, which will be used at a 26 July hearing to judge the RIAA's request for a preliminary injunction against Napster. The RIAA wants all songs owned by its members to be blocked from Napster's MP3 swapping software.

Last month, the San Francisco US District Court ruled that Napster was not protected by the US Digital Millennium Copyright Act, which shields ISPs from any copyright violations made by their customers. The court ruled that Napster was not a service provider, and therefore could be held responsible for the actions of people who use its software.

Allowing others to copy MP3 versions of CDs you own - which is essentially how Napster (the software) is used - is arguably a violation of copyright law, though Napster (the company) claims that it isn't since the transaction is not a commercial one. "It is clear that our users are not violating the copyright law under the American Home Recording Act," said Boies. The Home Recording Act allows for copies of, say, CDs to be made for personal use, but it's a moot point whether giving tracks to third-parties counts as personal use. Perhaps a US lawyer - Mr Boies, perhaps - would like to clarify the matter for us.

Boies and Napster also maintain the company is an ISP, and thus not responsible for a user's actions, in any case.

Boies, however, is primarily arguing that the RIAA's case is motivated not by a desire to see justice, but to gang up on a smaller rival.

"It's clear the RIAA sees Napster as a threat not because it's going to reduce record sales but that it will reduce the RIAA's control over record sales," he said at a press conference yesterday.

"[Napster is] the kind of new technology that can threaten the economic control of a dominant trade association based on the existing technology, and the RIAA is trying very fast to catch up and shut down Napster until they can dominate," Boies added.

Rubbish, said the RIAA in response. RIAA lawyer Cary Sherman told Reuters that many of the organisations members have relationships with technology companies. The RIAA is sticking to its claim that Napster is engaged in "wholesale piracy", and is essentially the same a radio station without a public broadcast licence.

"Whether or not it's lawful for users to share music one on one, it is entirely different for a commercial entity to create a business that induces users to do that,'' Sherman said. "The courts have repeatedly rebuffed attempts by businesses to hide behind the 'fair use' privileges of their customers." ®