Napster takes last stab at record industry arguments

The document filed late yesterday goes through the record industry's latest legal brief with a fine-toothed comb, pointing out what Napster attorneys say are numerous legal errors.

At the core of Napster's final argument is the contention that the big record labels are frightened of the company's power and are trying to take over the technology before it can hurt them.

"This case is about whether plaintiffs can use their control over music copyrights to achieve control over Napster's decentralized technology and prevent it from transforming the Internet in ways that might undermine their present chokehold on music promotion and distribution," the brief says.

Most of the legal ground traveled by both sides during the past few weeks has been familiar. The two sides are facing off in the 9th U.S. Circuit Court of Appeals in San Francisco, where Napster is seeking to overturn a lower-court decision that threatens to shut down the company.

The Recording Industry Association of America (RIAA) submitted a brief late last week, largely supporting a district court's July decision. In that ruling, U.S. District Judge Marilyn Hall Patel accepted little of Napster's legal reasoning and ordered the company to block any major-label songs from being traded using its service.

"The fact is, the law is on our side," RIAA chief executive Hilary Rosen said last week. "We are not suing a technology. We are suing a company that is stealing work that does not belong to them."

Much of the real legal show during the past few weeks has come from outside organizations, which have filed a growing stack of "friend of the court" briefs on both sides of the case.

Late last week, the Justice Department and the U.S. Copyright Office joined forces to denounce a key part of Napster's legal defense, in which the company contends that copyright law protects consumers' ability to download and share songs online for free.

That argument would allow Napster aficionados to "engage in digital copying and public distribution of copyrighted works on a scale beggaring anything Congress could have imagined when it enacted the (Digital Millennium Copyright) Act," the agencies wrote in their brief.

Several weeks earlier, several powerful technology trade associations filed their own "friend of the court" briefs criticizing individual pieces of Patel's ruling, saying the decision could set precedents that hinder the spread of new technologies. But they stopped short of explicitly supporting Napster's position.

In its brief yesterday, Napster again outlined what it says is copyright law that protects free downloading of songs online. The RIAA's interpretation of this law would "create results so absurd that no Congress should be assumed to have intended them," the brief said.

The company again took shelter under earlier legal decisions that protected the right of the Sony Betamax VCR to exist even though it had the ability to duplicate copyrighted movies. That decision allows the use of new technologies if they have the capability of a substantial use that does not involve infringing copyrights, the lawyers said.

In her original decision, Patel said that Napster should remove major-label content that is clearly copyrighted, but it could keep any other services it maintained, such as chat rooms or its new artist program. Napster attorneys, however, say that the two functions can't be separated.

The industry's real intentions have been exposed by the major labels' refusals to settle the case, the company's attorneys add.

"The recording industry is attempting in this case to try to maintain control over music distribution," Napster attorney David Boies said in a statement. "By repeatedly refusing Napster's offers of a reasonable license and opposing a compulsory license, they have demonstrated that they are not seeking to be appropriately compensated, but rather to kill or control a technology they view as competition."

The two sides are scheduled to meet in court the first week of October.