Updated The US Patent and Trademark Office has told the US Court of Appeal that it should discount Napster's argument that the controversial MP3 sharing service is protected by the US Home Recordings Act (HRA).

Oh dear.

Oh dear, oh dear.

Oh dear, oh dear, oh dear.

The provision the HRA grants CD owners to copy disks for their own use is a key part of Napster defence. The company's lawyers noted that preliminary drafts of the HRA stated that that protection extended to the CD owner's family and close friends, provided they were not charged money for the privilege.

Consequently, they said, Napster is protected by the Act since its software simply allows the CD owner to share his or her music freely.

The question is, did the legislators who drafted the HRA really mean the Act to protect all free copies, even to folk who have no connection with the CD owner at all?

The PTO's brief shows that it, for one, believes that that they didn't, and that Napster's software accordingly permits violations of the Act.

Napster can still attempt to claim immunity from prosecution under the Digital Millennium Copyright Act, which states that ISPs are not liable for the actions of their subscribers. Napster maintains that it is an ISP, and so not responsible for any acts of music piracy its users get up to. ®

• Napster was just shy of the half-a-billion mark when its users were tallied by market researcher Media Metrix in July. That's significantly up on the 1.1 million users it had in February, according to MM. Some six per cent of modem-connected home users have downloaded and tried Napster in July, the research claims. And some 887,000 office workers did so too during the same period, up from 417,000 in May.

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