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E-mail a weapon in file-swap fight

Hoping for a repeat of Napster's flameout, the RIAA and the MPAA are using file-swapping company execs' own words against them in the attempt to close Kazaa and Morpheus.

Hoping for a repeat of Napster's legal flameout, the record and movie trade associations are using file-swapping company executives' own words against them in the attempt to close the Kazaa and Morpheus networks.

In court documents filed Monday, and kept under seal until Thursday, the Recording Industry Association of America (RIAA) and Motion Picture Association of America used internal e-mails, message board postings, and interviews with executives in hopes of persuading a federal judge to shut down the file-swapping networks. The trade associations are asking for a summary judgment, or a quick end to the case before going to trial, against Morpheus parent StreamCast Networks, Grokster, and Kazaa parent Sharman Networks.

"The uncontroverted facts all point to the inescapable conclusion: Defendants' systems were designed and intended first to emulate Napster and then to surpass it," the trade associations wrote in their legal brief, which remained under seal until Thursday. They "have succeeded beyond their wildest dreams."

The trade associations' 67-page legal brief provides the first details of exactly what the latest file-swapping legal wars will be fought over. At their core, the legal issues are the same ones that appeared in Napster's case--but the judge in this case will be ruling on a very different set of circumstances, technologies and internal communications.

Indeed, the two sides at this point are struggling to define what the case is about. StreamCast and the other file-swappers want the focus of the case to be about the legality of peer-to-peer software, a technology that certainly has many other uses beyond copyright infringement. The record labels and movie studios are trying to narrow the case, seeking to prove that the companies involved deliberately built their business to take advantage of widespread piracy.

As with Napster, record and movie companies are seeking to prove that the file-swapping companies knew of the widespread copyright infringement going on using their networks and that they had the ability to stop it.

The groups draw from the file-swapping companies' internal communications, along with Web site text, sales pitches and advertisements, as evidence that the companies created their networks with the intention of facilitating piracy. Individual employees for StreamCast Networks (originally called Music City) acknowledged downloading copyrighted works by Billie Holliday and Britney Spears and used screen shots showing copyrighted works to demonstrate their system, the trade associations say.

Picking up where Napster left off?
The brief cites StreamCast Networks' (then called Music City) former CEO telling a board member that their software would be "the logical choice to pick up the bulk of the 74 million users that are about to 'turn Napster off.'"

The record labels and movie studios also cite communications between Music City and Kazaa, the company that created the file-swapping technology, that show both companies were thinking about trying to figure out ways to monitor trades of individual files.

"The activity we want to monitor if possible are the files that users download, so that we can track copyrighted material for royalties," an unnamed Music City representative is quoted as saying in one exchange. Details about whether this exchange was e-mail, chat or another medium are not given.

"OK," responds an unnamed Kazaa representative. "As I've mentioned, we've designed a system for this, but it's not yet implemented. It could be quickly, however."

Attorneys for Streamcast Networks say this exchange, and other bits of evidence like it, mean little. Neither Music City nor any other software company is required to build in specific copyright protection features simply because the capability exists, they say.

"Owning copyrights doesn't give you the right to dictate to people how to build their products," said Fred von Lohmann, an Electronic Frontier Foundation attorney who is representing Streamcast. "If that were the rule, it would make Microsoft, with Internet Explorer and Outlook, an infringer. It would make virtually every software company liable for copyright infringement."

The trade associations' brief goes into specific technological details about the file-swapping software, trying to show that the peer-to-peer companies had a direct role in maintaining the networks, instead of simply distributing software. However, the documents lump all the file-swapping companies together, making it difficult to discern exactly which company had which alleged role in building and maintaining the networks.

The evidence now beginning to filter out into the public eye will reach court Dec. 2, when a federal judge in Los Angeles will hear each side argue that the case should be brought to an immediate close.