July 13, 2000 8:00 PM PDT

Recording industry calls Napster defense "baseless"

In a final response to Napster before meeting in court later this month, the Recording Industry Association of America today dismissed the start-up's legal defense of its music-swapping business as "patently baseless."

The industry group, which is suing the Net company for allegedly contributing to massive copyright infringement, said Napster is trying to hide its members' music piracy behind a metaphor of "sharing."

"Napster...uses euphemisms like 'sharing' to avoid the real issue," the RIAA wrote in its brief. "The truth is, the making and distributing of unauthorized copies of copyrighted works by Napster users is not 'sharing,' any more than stealing apples from your neighbor's tree is 'gardening.'"

The brief reiterates the industry's appeal to the court to pull all major-label content off Napster while the two sides move into what could be a lengthy trial. That would effectively close Napster's digital doors for months, an eventuality the young company is desperately trying to avoid.

As part of its quest to stay alive, Napster has made several bold arguments, grounded by the idea that sharing music online for free is protected by copyright law.

In a legal brief filed early this month, the first with attorney David Boies on board, the company argued that the 1992 Audio Home Recording Act (AHRA) allows individuals to share a song with as many people as they want as long as it is a noncommercial use.

"If Napster users are not acting illegally, then there is no contributory (copyright) infringement," Boies told reporters.

The RIAA dismissed this argument, noting that Napster has a warning on its own Web site telling people that unauthorized copying of copyrighted work is an infringement of copyright holders' rights. A legislative report leading to the AHRA--which Napster also quotes in its brief--specifically mentions "a household and its normal circle of friends, rather than the public," as protected, the industry says.

Napster has several backup lines of defense, however.

Boies and his legal team cited the court decision that preserved the Sony Betamax videocassette recorder from being outlawed. Like the VCR, which allows people to copy movies illegally, Napster is capable of substantial legal uses, the company said.

Napster has been working to bolster this argument during the past few Napster wildfire weeks, spotlighting a "New Artist" program aimed at promoting indie and unsigned musicians.

But Boies--most recently seen as the Justice Department's attorney fighting successfully against Microsoft--also raised the specter of antitrust behavior by the record labels. By blocking new means of distributing music online, the industry was misusing its copyright privileges, he said. Under an obscure antitrust legal doctrine, that could mean the industry would lose its right to sue Napster.

The RIAA contended that Napster, because it is an ongoing business service, does not qualify for the same protections as Sony and other VCR manufacturers.

"Napster is no more subject to (these legal protections) than would be a defendant whose business consisted of providing customers with a VCR, copyrighted movies and a room in which to copy them," the RIAA's attorneys wrote.

Issues similar to Boies' antitrust argument had been raised by MP3.com in its fight against the RIAA and dismissed by a judge as "frivolous," the trade group added.

The two sides will meet in court July 26, where a federal judge is scheduled to hear arguments for and against the proposed Napster injunction.

 

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