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Napster, RIAA suit opens today

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Application security programs and practises

Napster will face the Recording Industry Association (RIAA) in court today, as the two sides meet for what should be their final confrontation.

In the blue corner, the RIAA will seek to have its preliminary injunction against Napster not only reinstated but made permanent. In the red corner, Napster will be fighting for its survival.

Both sides have powerful arguments and advocates. Napster's lead attorney, David Boies, who successful prosecuted the US Department of Justice's anti-trust action against Microsoft, will state that Napster is not guilty of contributory copyright theft, under both the Home Recordings Act (HRA) of 1982 and the Digital Millennium Copyright Act (DMCA).

The former, in sprit if not in the letter, permits non-commercial duplication and sharing of copyrighted content. The DMCA, meanwhile, protects Internet Service Providers from illegal acts committed by their customers.

Boies will also argue that since Napster launched its controversial MP3 file sharing software, in no way have the RIAA's members been harmed by the actions of Napster's users, and on that basis, the RIAA has no right to be granted an injunction against his client.

The RIAA's case centres on refuting Boies' key points: that Napster usage is harming the music industry, and that Napster should be considered responsible for that usage. It maintains that the HRA doesn't permit unlimited non-commercial copying, only the kind of duplication a CD owner might not unreasonably be expected to be allowed. In other words, he or she can make copies of a CD to play in a Walkman or in the car, and might even allow someone else in their household to do the same. But he or she, the RIAA will argue, does not have the right to give copies to total strangers.

It will also claim that since Napster is a commercial entity - even though it's not actually making any money - and therefore its users' actions can't be considered non-commercial.

The RIAA will probably also claim it's acting on behalf of all copyright holders, not just the music business, and that allowing Napster to continue threatens all intellectual property.

It's this precedent-setting side to the case that persuaded the US Ninth Circuit Court of Appeal, before whom today's trial will take place, to reverse the District Court's granting of the RIAA's requested injunction. ®

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