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White House sticks its nose in Napster appeal

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The Clinton Administration has seen fit to submit a brief of amici curiae to the Ninth Circuit US Court of Appeals arguing that the Audio Home Recording Act of 1992 does not apply to Napster's appeal of a copyright infringement suit brought by the Recording Industry Association of America (RIAA) back in December.

While anyone willing to hire a lawyer has the right to submit a brief on any case, the thought of a government office using public money to do so in a private dispute leaves a rather disgusting taste in the mouth.

And that's just for starters. The brief itself is such a classic tour de force of Clintonesque semantic hair-splitting, fraudulent weasel-wording, and spineless, opportunistic spin that one may feel the need to bathe after reading it.

The Home Recording Act, we are told, "identifies four specific kinds of products whose manufacture, distribution, and non-commercial use Congress wished to shield from actions for copyright infringement. Those products are 'a digital audio recording device; a digital audio recording medium; an analogue recording device; or an analogue recording medium.'"

The White House legal eagles therefore contradict Napster's argument that PCs should be considered home recording devices eligible for protection under the Act.

"Nothing in the language....purports to grant manufacturers, distributors, or consumers any immunity with respect to products other than the devices and media specified," the amici note.

"In this case, Napster's users exchange music by using personal computers to locate and transfer files from one computer hard disk to another. Neither a personal computer nor its hard disk constitutes 'a digital audio recording device, a digital audio recording medium, an analogue recording device, or an analogue recording medium,'" the legal team argues.

"The terms 'digital audio recording device' and 'digital audio recording medium' are specifically defined in the Act. A 'digital audio recording device' is defined, with exceptions not relevant here, as any machine or device 'the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use.'"

Personal computers, as we all know, serve numerous other functions besides recording audio content; and this is the core of the White House argument claiming that they aren't protected: 'if our net doesn't catch it, it's not a fish'.

It's possible that if the multimedia potential of PCs was as well developed in 1992 as it is today, Congress might well have added them to their list of 'digital recording devices'. Of course any effort to revisit the Act and amend it to accommodate using a PC as a home recording device would be opposed savagely by lobbyists from the RIAA and the Motion Picture Association of America (MPAA), and is therefore best withheld until the current election season passes.

Even then, there is scant motivation for Members of Congress to defy legions of well-heeled, and extremely generous, industry lobbyists, unless the public first makes a far bigger issue than they have done to date of their right to copy media on their personal computers for personal use.

Friday marked the deadline for the RIAA and other lobbyists, interested parties and would-be amici curiae to respond to Napster's arguments; and Napster has until 12 September to file their rebuttal documents. The appellate court is expected to hear oral arguments in early October. ®

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