Federal Government Sides Against Napster

One of Napster’s Defenses Questioned
Napster cites the same law, which allows copying of music for personal use, in arguing that it is immune. The San Mateo, Calif.,-based Internet startup allows 22 million users to swap music online.
“Napster asserts … the Audio Home Recording Act provides its users with immunity from liability for copyright infringement and, in so doing, relieves Napster itself from any derivative liability for contributory or vicarious infringement,” government lawyers wrote. “The District Court was correct to reject that defense.”
An attorney for Napster said that the company still had other legal defenses besides the Audio Home Recording Act.
“The most that this is saying is that this one particular defense is not available to us,” said attorney Robert Silver. The government “doesn’t take issue with any of our other defenses, even though they could have,” he said.
The government’s briefs came four weeks before a three-judge panel of the circuit court hears the case in San Francisco.
The same court spared Napster from an order by Judge Patel that would have shut down the site pending the outcome of the trial. In issuing the stay, the panel said “substantial questions” had been raised about the merits and form of the injunction.
Judge Patel granted the injunction at the request of the Recording Industry Association of America, which sued Napster in December for copyright infringement.
The RIAA was expected to file court briefs backing the government’s position.

Public Music Distribution At Issue
Cary Sherman, RIAA general counsel, said the government’s brief shows how “twisted” Napster’s argument is.

“Napster is basically arguing that the Audio Home Recording Act gives them immunity. The government is saying that that is simply not true,” Sherman said.

In its brief, the government wrote that the Audio Home Recording Act protects consumers who copy protected works for personal consumption, and not for public or commercial distribution. Napster allows users to share music with millions of others.

The act “makes no reference, and provides no possible defense, to infringement claims based on the public distribution of copied works,” the government wrote.

Napster has said in its court briefs that neither its users — who trade music for free — nor the company are in violation of copyright law. Napster asked the court to reverse and vacate the injunction.

“If users are not themselves infringing, then we are not liable for contributory infringement,” attorney Jonathan Schiller wrote in Napster’s brief.