Music Industry Responds To Napster Tonight

Lawyers working for the record industry are filing
their opening brief tonight in a legal tussle with music-swapping
company Napster that has escalated to the US Court of Appeals.

The Recording Industry Association of America (RIAA) and the
National Music Publishers Association (NMPA) can be excused for
believing they have a winning argument: it has already worked well
for the 18 record labels and the pair of music publishing companies
they represent in a lawsuit that claims Napster aids massive
copyright infringement by connecting users who exchange pirated MP3
files on its peer-to-peer network.

The case built by the music industry so far has earned a
preliminary injunction from a US District Court judge in San
Francisco. The injunction issued July 26 by Judge Marilyn Hall
Patel was supposed to stop all sharing of the record companies'
music via Napster late July 28, but was stayed by a last-minute
order from the Appeals Court for the 9th Circuit - a California-
based jurisdiction well-versed in litigation over high-tech topics.

It is the appeal of that injunction that the industry's lawyers
were to address in their brief tonight, expected about 9pm EST,
responding to an opening
argument filed by Napster Aug. 18. A hearing before a panel of
Appeals Court judges is scheduled to begin Oct. 2.

While Napster is in the position of having to prove that Patel
erred in her decision, music industry lawyers examining the online
music company's opening salvo in the appeal couldn't help but
notice Napster's new emphasis on the need to safeguard
technological innovation. In Napster's case, that innovation is its
peer-to-peer approach to delivering network services.

That focus, Napster's lead-off argument in the brief it filed Aug.
18, has attracted some support from a bevy of technology-industry
groups, a coalition of copyright-law experts and the American Civil
Liberties Union, among others, all of which filed "friend-of-the-
court" (or, amicus) briefs in the case late last month.

While the appeals panel has yet to determine whether it will allow
the third-party contributions to play a role in the case, the
documents warn that Patel's decision can be seen as making certain
technologies illegal just because some people might use that
technology for such purposes as copying music.

In its brief, Napster argued that there is no way for it to know
whether or not its users are trading MP3 files the RIAA might
consider to be illegal if swapped online.

Napster pointed out that users locate MP3 files on each other's
computers by searching for words or phrases that match the names
assigned to individual files. However, Napster said, "Because
Napster does not control the file names, it cannot know the
content - much less the copyright status or use being made - of
particular files."

The company's brief was able to take advantage of recent comments
from Intel Corp. Chairman Andy Grove, who was quoted as saying that
"the whole Internet could be rearchitected by Napster-like
technology." Yahoo Inc. President Jeff Mallett is quoted in the
brief as saying that "peer-to-peer is going to change traditional
companies' models ... and change the model for Internet companies
as well."

Even RIAA chief Hilary Rosen is quoted in the Napster brief as
saying peer-or-peer file sharing could be used in what the RIAA
could consider legitimate business models.

Napster argued that Patel erred in ignoring the argument that
Napster technology could be used for legitimate file swapping, thus
making any technology with the same capabilities essentially
illegal.

In the amicus brief from 18 law professors with expertise in
copyright issues, the group wrote: "The injunction issued by
(Patel) is so sweeping that it would be impractical for any peer-
to-peer file-sharing to operate under its strictures.

"A key feature of peer-to-peer file-sharing systems is that users
control the transfer of files. The court's injunction required that
Napster reconfigure its system to ensure that users could not share
files without the copyright owner's authorization.... The effect of
the injunction is to brand an enormously promising technological
innovation as illegal."

Organizations such as the Digital Media Association (DiMA), the
Computer and Communications Industry Association (CCIA), and the
Consumer Electronics Association (CEA) said they weren't supporting
the exchange of copyrighted music, but argued that Patel's ruling
could have a chilling effect on the development of technology by
companies ranging from Internet Webcasters to manufacturers of
electronic gadgets.

Napster is at: http://www.napster.com/.

The RIAA can be found at: http://www.riaa.org/

Reported by Newsbytes.com, http://www.newsbytes.com