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.