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RIAA vs Napster: case opens tomorrow

How the two combatants will argue the toss

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The Recording Industry Association of America's music piracy suit against controversial software developer Napster comes to the US District Court in San Francisco tomorrow.

The RIAA will ask the presiding judge, Marilyn Patel, to shut down Napster's service pending the software company's trial on charges that it aids and abets copyright infringement.

Not that it's expecting a quick judgement. The RIAA's chief lawyer, Cary Sherman, told Reuters today that "we don't really expect a result this week... It's unlikely the judge would rule from the bench on a case this important or complicated".

Still, the case - from both parties' perspectives - remains clear cut. The RIAA claims Napster is liable for the actions of those of its users who sharing tracks ripped from copyright-protected CDs and converted into MP3 files. Napster, says the RIAA. is not protected by 'fair use' doctrines or by the Home Recording Act (HRA) and the Digital Millennium Copyright Act (DMCA). In other words: it's as guilty as sin, your honour.

Oh no we're not, responds Napster, which contends it is protected by both of those US laws. The HRA permits Napster's users to make personal copies of CDs they've bought legitimately, and to share those copies with their chums. Meanwhile, the DMCA protects Napster, as an Internet Service Provider, from the actions of its users.

Napster's problem is that it has already had the DMCA argument rejected by a Judge Patel, and the HRA is vague on what constitutes a music owners inner circle with whom he or she can legitimately share copies of that music. Working drafts of the Act discuss "a household and its normal circle of friends, rather than the public" - Napster will have a hard time arguing that that definition includes thousands of users connected to the music owner's PC via its software and the Net.

The case seems pretty tight, but as copyright lawyer Leonard Rubin, cited by Reuters, notes, the RIAA will have to show "monetary damages and irreperable harm" in order for an injunction against Napster to be granted. Since Napster lacks a solid business model, as a company it's clearly not profiting from its users' actions, and since the record sales have gone up around eight per cent year on year, it can hardly be said to have irreperably harmed the RIAA's major label members.

Indeed, according to a recent Jupiter Communications survey of 2200 digital music listeners, Napster's sharing software may even be encouraging CD sales.

However, such is the importance of the case, that it's difficult to see the judgement not going against Napster. Not least since the company tacitly admitted the weakness of its case by complying with the request of Metallica to boot off users the band accused of pirating its music. ®

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