Napster Issues Final Statement for Appeal

By Carol King,

Ongoing sparring continues between recent courtroom victor, the
Recording Industry Association of
(RIAA), and underdog Napster, the much-beleaguered online
music provider.

Napster released a statement entitled “Napster to RIAA: The
Issue is Not the Copyright, It’s the Control,” Tuesday to the Ninth
Circuit Court of Appeals in appeal of a preliminary injunction
against the music provider.

The statement responds to a document filed Sept. 8, entitled
“RIAA, NMPA to Napster: It’s Not the Technology, It’s the Theft,”
which was prepared by the RIAA and the National Music Publishers Association.
Napster had until September 12 to reply.

According to the Napster statement:

“This case is not about any diminution in the value of
Plaintiffs’ copyrights; none has occurred or is reasonably
foreseeable as the result of Napster. This case is about whether
Plaintiffs can use their control over music copyrights to achieve
control over Napster’s decentralized technology and prevent it from
transforming the Internet in ways that might undermine their
present chokehold on music promotion and distribution.”

“The recording industry is attempting in this case to try to
maintain control over music distribution,” said Napster attorney
David Boies. “By repeatedly refusing Napster’s offers of a
reasonable license and opposing a compulsory license, they have
demonstrated that they are not seeking to be appropriately
compensated, but rather to kill or control a technology they view
as competition.”

The brief reinforced Napster’s key defenses to the RIAA lawsuit,
specifically the Audio Home Recording Act (AHRA), which Napster
contends that the plaintiffs in their brief disregarded key
language in the AHRA and substituted words that better suited their

According to Napster, the plaintiffs ignored the very purpose of
the Act’s immunity provisions as previously described by, among
others, their own General Counsel and that the Ninth Circuit has
already resolved this question in Napster’s favor.

The Napster brief is the last filing in a series set in motion
by the District Court’s preliminary injunction on July 26, 2000. At
that time, U.S. District Court Judge Marilyn Hall Patel ordered
Napster to halt the sharing of songs owned by RIAA members. Two
days later, and hours before the injunction would have taken
effect, the U.S. Court of Appeals in San Francisco issued a

An oral argument is scheduled for Oct. 2.

The courtroom battle between the two has been going on since
December 1999 when the RIAA filed suit against Napster Inc.,
alleging it is operating as a haven for music piracy on the

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