September 18, 2000 8:00 AM PDT

Feds disagree about Napster controversy

The legal fight over music-swapping start-up Napster has divided Washington, pitting at least one powerful legislator against the Clinton administration.

Two weeks ago, the Justice Department and the U.S. Copyright Office filed legal briefs with the 9th U.S. Circuit Court of Appeals, blasting a key part of Napster's defense against the record industry's claims of massive copyright infringement. Napster, along with other controversial online file-swapping companies, allows thousands of individuals at a time to search hard drives and download files, including copyrighted music, from each other.

But the U.S. agencies' action isn't sitting well in some government circles. Late last week, Sen. Orrin Hatch, R-Utah--chairman of the Senate Judiciary Committee, which helps make copyright law--sent a terse letter to the court saying that the DOJ and the Copyright Office did not represent the opinion of the full U.S. government.

"Given the importance of the issues to be decided, I thought it important that the court be under no misapprehension that the (DOJ) brief necessarily expresses the view of Congress in this matter," Hatch wrote. "Indeed, Congress has recently held hearings into the matter and is engaged in ongoing deliberations about its merits as the events unfold in the emerging online music and entertainment market."

Hatch's letter, while lacking the weight of an official "amicus," or "friend of the court" legal brief, could undermine some of the weight of the agencies' involvement.

The agencies wrote that if the file-swapping service were allowed to exist Court: Shut down Napster in its current form, "Napster's users would be permitted 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. Yet the music industry would receive nothing in return."

The letter marks just the latest entrant in what has become a crowded field of players vying to help shape the law around Napster and the controversies surrounding intellectual property and copyright online.

Shortly before the U.S. agencies weighed in, several powerful technology, Internet and electronics trade associations filed their own amicus briefs in the Napster case, criticizing different pieces of the district court decision that still threatens to take Napster offline. The organizations, however, stopped short of supporting Napster itself.

Hatch has been one of the most consistently sympathetic ears in Washington for the file-trading companies under fire by the record industry.

Executives from Scour, a Napster-like file-swapping service, met with Hatch in what they described as a promising meeting, just hours before receiving news that they too had been sued by the Recording Industry Association of America.

Napster and the RIAA are scheduled to meet in court sometime during the first week of October. The appeals court will decide whether to uphold a preliminary injunction order that threatens to shut Napster down, at least in the short term.

 

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