Napster lawyer turns antitrust experience on RIAA

For several years he's fought Microsoft on behalf of the DOJ, winning an antitrust judgment that threatens to break the software giant in two.

Now, with only a few weeks between cases to catch his breath, he's defending start-up Napster against a high-stakes lawsuit filed by the record industry, which charges the music-swapping software company with contributing to massive violations of copyrights.

Boies' entry into the case has brought new life to what many in the legal community had believed to be a difficult defense at best. In their first major brief, filed early this month, Boies and his team contend that Napster users aren't violating the law by downloading or sharing songs online.

Boies also has brought his antitrust experience to the issue. In a surprise move, the attorney leveled charges that the record industry has abused its limited monopolies. The record companies have created a "copyright pool that dominates an industry," Boies says, and have used that power to "disable the competition."

Under an obscure provision of antitrust law, that means the industry should lose the ability to sue to protect its copyrights, Boies and his team argue.

Other copyright attorneys say that's a long shot--but they're watching to see whether the argument flies. For its part, the record industry has dismissed the issue without much comment while saying the rest of Boies' arguments are "baseless." But it will be up to a federal judge next week to decide whether Boies has pulled another rabbit from his attorney's cap.

In an interview with CNET News.com, Boies talked about his work on the Napster case and discussed how lessons learned from Microsoft can be applied to the music industry.

CNET News.com: What do you think of the RIAA's recent response to your brief?
Boies: The response really doesn't address the main points made in our brief. First, the issue is whether or not the individual Napster users are violating the law or not. If they are not violating the law, then that's the end of the matter, because Napster cannot be guilty of any contributory infringement or vicarious liability unless there is liability on behalf of the Napster users. The RIAA response really doesn't address the central point as to whether they can find any illegality on behalf of the Napster user.

They cite language from a federal legislative policy report that talks about the "private" or "personal" use of copyrights in a very different way from what you have outlined. Are you concerned that different court interpretations of private and personal could fall down in their favor?
Remember that "private" and "personal" do not appear in the statute. What the RIAA is trying to do is go back to various parts of the legislative history. I believe that if you look at the legislative history in context, it makes clear that Congress was, as the 9th Circuit Court of Appeals later held, immunizing all--and "all" is the court's word--noncommercial copying of music by consumers.

But whether or not you can find something in legislative history that goes one way or the other is not really the point. The point is that Congress, after considering all this legislative history, made a decision to immunize all noncommercial copying. Congress wrote the statute that it wrote, and as the 9th Circuit wrote, that meant that all noncommercial copying by consumers was lawful.

You've brought up an antitrust argument that says the record industry has misused its copyrights. The RIAA essentially dismisses this argument without even addressing it, saying it was brought up by MP3.com and dismissed by the judge in that case. Are these the same issues? Or are you confident that you're grounded solidly enough in different evidence that you'll be able to pursue this issue?
Absolutely. (MP3.com) did not have the evidence that we have and was not making the same argument that we are. We are making an argument of copyright misuse based on the RIAA's own documents and admissions and depositions we took.

What kind of documents are you looking at?
To the extent we can publicly refer to documents which are subject to a protective order, that's done in our brief.

Does this extend to the RIAA as the industry umbrella group or to the labels as well?
It think it extends to the RIAA. The extent to which it extends to each of the labels individually is something about which discovery is still going on.

One of the other arguments you're making is that Napster is protected from liability under the Digital Millennium Copyright Act--even though the court has rejected this once. Is this because there is a different legal standard for this part of the case?
It is a different standard now. It is also the case that the takedown notice that now exists is something that would bar their right to an injunction under the act, even if they could argue that there might be prior damage periods.

So if that's the only argument accepted by the court, there may be room for damages stemming from the time previous to when the takedown notice was posted. But that's not enough to shut down the service.
Exactly.

Is there any concern that Napster has a takedown notice that says unauthorized copying is illegal, contrasting with your argument that says the copying is legal?
No, because I think one of the purposes of the takedown notice is to bring the company within the protection of the Digital Millennium Safe Harbor Act, and that's one of the ways you do that. The company has made its position within the litigation clear, and I'm hopeful the court will see things the same way. But one of the things you do in litigation, particularly in litigation where they're trying to shut down the service, is try to take advantage of the safe harbors that exist.

Even if ultimately, best case, you don't need them?
Exactly. Belt and suspenders.

How do you see this case in comparison with your last big case (against Microsoft)? Each now touches on antitrust issues.
I think there are some common themes. In each case there was a dominant company or group of companies that was potentially threatened with a new technology. In each case there was a dominant company or group of companies that used the power that came from their present dominance to try to crush a new technology before it could establish new competition. In each case there was a dominant company or group of companies trying to prevent consumers from having choice as to how they would obtain in one case, browser service, in the other case, music.

So I think there are some common themes, but I think the differences are more important than the points of commonality.