Tech giants slam Napster injunction

The parties involved, including the Consumer Electronics Association (CEA), the Digital Media Association (DiMA) and NetCoalition, are careful to say that they are not explicitly supporting either side in the high-stakes lawsuit. But each group's separate arguments go a long way to support Napster in its battle against the Recording Industry Association of America.

The CEA includes giants such as Sony Electronics, Apple Computer, Cisco Systems and hundreds of others across the industry. DiMA is composed of many of the leading online music companies, such as Listen.com and EMusic.

NetCoalition is a Washington, D.C.-based lobbying group that includes Yahoo, America Online, Amazon.com and Excite@Home, among others.

Several of the trade associations contend that federal Judge Marilyn Hall Patel misapplied copyright law that protects technologies with "substantial non-infringing uses." If her decision is used as precedent for other cases, it could threaten development across the consumer technology sector, they say.

"There are ways to go after bad people and infringing techniques that are very different than the ways to ban technology," said Jon Potter, executive director of the DiMA. "But the critical thing is, you have to follow the law. The judge has distorted the (legal) standards."

Patel's decision late last month sided with the record industry and said it is likely Napster was at least partly liable for massive copyright infringement on the part of its members. She ordered that the music-swapping site prevent copyrighted material from being traded via its technology. Napster responded that it could not prevent such files from being swapped and warned that it could be forced out of business.

An appeals court stepped in just a few days later and granted Napster a reprieve. The company's appeal of the shutdown order is being heard in the 9th U.S. Circuit Court of Appeals.

The trade associations are filing their "amicus," or "friend-of-the-court," briefs in that appeal today.

DiMA and the Consumer Electronics Association are most concerned about Patel's rejection of Napster's defense that compared the software to videocassette recorders. Like VCRs--which a court has ruled are legal despite being able to copy protected movies--Napster also is capable of "substantial non-infringing use," the company argued.

Patel dismissed this argument, saying that Napster's internal documents show that the company had created the software largely to facilitate piracy and that company executives knew the piracy was happening on a massive scale.

Another coalition of companies took issue with a different portion of Patel's ruling in a separate brief. That group includes NetCoalition, the Ad Hoc Copyright Coalition, the U.S. Internet Industry Association, the Information Technology Association of America, the Commercial Internet Exchange, the United States Telephone Association, and the Computer and Communications Industry Association.

That group of trade associations is concerned about Patel's reasoning in determining whether the Digital Millennium Copyright Act would protect Napster from liability because of the company's role as a "service provider."

The trade groups did not go so far as to say Napster should win protection, but they said that Patel misconstrued the copyright law. Her reasoning could open ISPs and other online service providers to greater legal danger down the road, they said.

"We're not taking a position," said Wylie, Reine and Fielding attorney Bruce Joseph, who represents the group of online companies. "But we do think if the court is going to apply the law, it should apply the correct law."

The various amicus briefs could raise some tension between the groups and a few of the companies they represent. AOL is a member of several of the trade associations involved today but is merging with record giant Time Warner. Similarly, Sony Electronics is a member of the Consumer Electronics Association, while Sony Music is one of Napster's chief foes.

The briefs are on behalf of the trade associations rather than on behalf of their individual members, however. Neither AOL nor Sony Electronics has filed its own independent statements that support Napster.