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VNU Net: Napster hides behind 'home recording' law

Jul 05, 2000, 05:13 (2 Talkback[s])
(Other stories by Ian Lynch)

By Ian Lynch, VNU Net

Lawyers for controversial MP3 sharing website Napster yesterday argued that an injunction asking for it to shut it down should be thrown out because US federal law allows home users to swap copyrighted music.

Napster, which lets users swap tracks by downloading them as near CD-quality MP3 music files held on other users' computers, is facing an injunction that would shut down an estimated 87 per cent of its service - used by an estimated 15 million surfers worldwide.

The injunction was requested on 12 June by a coalition lead by the Recording Industry Association of America (RIAA), which argues that Napster encourages piracy and harms CD sales. UK record industry body the British Phonographic Industry (BPI) has previously indicated to vnunet.com that it is monitoring the case before deciding whether to press ahead with legal action of its own.

In papers filed with a San Francisco district court yesterday, Napster's lawyers asked District Judge Marilyn Patel to rule that the Audio Home Recording Act (1992) gives users the right to download songs from other Napster users, even if that music is protected by copyright.

"This makes clear that all non-commercial copying of music by consumers is legal," said David Boies, the lead attorney for Napster, who previously represented the US government in its legal case against Microsoft.

"The primary present use of the Napster internet directory service is to provide users with a list of other users who are prepared to share, on a one-to-one non-commercial basis, certain music files," Napster's lawyers argued in their written response to the RIAA's motion.

"Non-commercial sharing of music among individuals is common, legal and accepted," they added.

According to reports in the San Jose Mercury, Napster's lawyers also quoted a US Appeals Court ruling in a case where music industry groups tried to block sales of Diamond Multimedia's Rio MP3-player. The Ninth Circuit Court of Appeals ruled in 1998 that the device was protected by the Audio Home Recording Act.

"If a consumer can copy an MP3 file from his or her hard drive (to a portable player) without violating the copyright laws, it is self evident that Napster's internet directory service does not violate the copyright laws either," Napster's lawyers argued.

Recording industry lawyers were unimpressed. "Whether or not it is lawful for users to share music one-on-one, it is entirely different for a commercial entity to create a business that induces users to do that," said RIAA lawyer Cary Sherman.

"Napster cannot hide behind what consumers might be able to do, individually and on their own, to build its own commercial business."

Both sides will now present verbal arguments at a hearing set for 26 July.

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