Napster Fine-Tunes Defense, Says Issue Is Technology, Not Copyrights

Napster Inc. told a federal appeals court that control of Internet technology--not copyright law--is the issue in the recording industry’s legal fight against the popular music-sharing Web site.

San Mateo, Calif.-based Napster filed its final written arguments with the U.S. 9th Circuit Court of Appeals, which will decide whether to overturn a preliminary injunction that U.S. District Judge Marilyn Patel granted in July. Patel’s ruling, which bars Napster from helping Internet users duplicate copyrighted music, has been stayed pending the appeal.

“This case is not about any diminution in the value of plaintiffs’ copyrights; none has occurred or is reasonably foreseeable as a result of Napster,” the company contends in its legal brief.

“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 court papers say.

Napster is represented by David Boies, who led the U.S. government’s successful antitrust case against Microsoft Corp. Microsoft is appealing a federal judge’s order that would split it in two.

A panel of San Francisco-based 9th Circuit judges is scheduled to hear oral arguments Oct. 2 in the case, brought by the Recording Industry Assn. of America on behalf of 18 recording companies. The association filed a brief last week with the court supporting Patel’s ruling.

The record industry describes Napster’s Web site as an illegal online swap meet that encourages copyright violations.

Attorneys for the U.S. Copyright Office and U.S. Patent and Trademark Office told an appeals court Friday that Napster can’t seek immunity under the Audio Home Recording Act of 1992, which protects noncommercial copying of digital and analog music recordings. The government’s conclusion bolsters the recording industry’s arguments.

Napster’s brief counters that the industry “disregarded key language” and “ignored the very purpose of the act’s immunity provisions” in its interpretation of the act.

In July, Patel rejected virtually all of Napster’s arguments. She found the industry had presented “convincing evidence” that Napster executives knew about and tried to protect the Web site as a means of transferring pirated music. In ordering the preliminary injunction, she ruled that the industry has a likelihood of succeeding in its lawsuit.

Some legal experts have said Napster’s strongest defense rests in a 1984 U.S. Supreme Court decision, which found that Sony Corp.’s Betamax videocassette recorders could be used for “legitimate, unobjectionable purposes” and therefore didn’t infringe copyrights.

Napster’s stance was backed by friend-of-the-court briefs filed by Sony, Apple Computer Inc., Cisco Systems Inc., America Online Inc. and Yahoo Inc.