RIAA dubs Napster defence ‘patently baseless’

The Recording Industry Association of America (RIAA) yesterday responded to Napster's defence, released last week, against the organisation's copyright violation lawsuit.

Both defence and response have been posted in the run-up to a 26 July hearing at which the judge will decide whether the RIAA should be granted an injunction against Napster forcing the company to remove all works owned by RIAA member companies from its service.

Napster argues that the RIAA case for such an injunction is groundless on three counts. First, allowing users to share MP3 files isn't illegal, provided its users do so non-commercially. Second, Napster's software, also called Napster, is simply the code equivalent of a VCR, and precedent has permitted them to be sold. Finally, the RIAA's attempt to block Napster from operating is itself a violation of anti-trust law.

Not surprisingly, the RIAA poo-poos all three arguments. Napster's first line of defence is based on the US' Home Recordings Act of 1992. It allows anyone who buys a CD to make a tape copy to play it in the car or on a Walkman. That tape can also be shared with others, and Napster reckons sharing MP3s amounts to the same thing.

The RIAA points out that, in documents on the Home Recordings Act authored before the law's enactment, only "a household and its normal circle of friends, rather than the public" can legally share copies of copyright works. That, says the RIAA, clearly negates Napster's 'sharing-is-legal' claim.

"The truth is, the making and distributing of unauthorised copies of copyrighted works by Napster users is not 'sharing', any more than stealing apples from your neighbour's tree is 'sharing'," says the RIAA brief.

One other point, says the RIAA, the Home Recordings Act doesn't apply to computers and computer-based services. It should know: that's the very argument Diamond Multimedia lawyers used to prevent the RIAA getting the company's Rio MP3 player banned.

As for the VCR argument, the RIAA says the comparison with Napster is false - Napster is a business service, not a product. True, Napster's software is a product, but the basis of Napster's operation is to make money by selling advertising to its users. VCRs were declared legal because although they could be used for copyright infringement, they could also be used for perfectly legitimate purposes - in short, their manufacturers don't profit directly from the illegal use of their products. Napster, on the other hand, does, at least according to the RIAA.

"Napster is no more subject to (these legal protections) than would be a defendant whose business consisted of providing customers with a VCR, copyrighted movies, and a room in which to copy them," the RIAA brief states.

Finally, the RIAA notes that in the MP3.com copyright infringement trial, also instigated by the RIAA, that company claimed that the RIAA's action against it was a violation of anti-trust law because it sought to block the actions of a new competitor. The trial judge dismissed MP3.com's line as " frivolous", and the RIAA reckons Napster's identical argument should be thrown out for the same reason.

Napster and its high-profile advocate, David 'Microsoft anti-trust trial' Boies, also claim that the company, as an ISP, is protected from its users' actions by the US' Digital Millennium Copyright Act. The only snag here is that this argument has already been dismissed by a Federal Judge last month. It also implies that Napster's users may be engaged in illegal acts that Napster is, as an ISP, safe from. Yet Napster's main defence is that its users aren't acting illegally. That's a contradiction the company has yet to resolve. ®

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