|A federal law that allows copying music for personal use — such as dubbing mixtapes and CDs — should protect the popular online music-swapping application Napster from being shut down by the recording industry, according to a brief filed this week by Napster, Inc.
The latest move in the legal battle is Napster's response to an attempt by the Recording Industry Association of America to shut down the swapping application until the courts resolve the association's copyright infringement lawsuit against Napster. Attorneys for Napster filed the brief Monday in San Francisco Superior Court.
The RIAA says that the massive scale of Internet file sharing facilitated by Napster's software demands the service be treated differently from individual users making mixtapes or burning CDs for friends.
"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," Cary Sherman, RIAA executive vice president and general counsel, said in a statement Wednesday. "Napster cannot hide behind what consumers might be able to do, individually and on their own, to build its own commercial business."
Napster's defense team, led by David Boies, who argued the Justice Department's antitrust case against Microsoft, says the 1992 Audio Home Recording Act permits "noncommercial use by a consumer" of copies of copyrighted material and, therefore, allows Napster-style sharing of MP3 files.
Napster allows users to download MP3 files stored on other users' hard drives. The software — which the company likens to a library card catalog and which can be downloaded at www.napster.com — makes it possible to search a database of files available at any moment.
Napster says that nothing in the federal legislation suggests there should be limits imposed on the number of consumers who make copies of copyrighted material for personal use. The company says a preliminary injunction would violate users' First Amendment rights to free speech by squelching the flow of music files before a ruling has been made in the lawsuit.
Fred Von Lohmann, a San Francisco intellectual-property attorney, said scale was irrelevant, citing copyright scholar David Nimmer.
"Nimmer said ... that as he understood the home taping exception, it would be perfectly legal for everybody in San Francisco to go to Golden Gate Park on a Sunday afternoon with all their CDs tucked under their arm and a bunch of tape decks and share their CDs and make copies for home use," Von Lohmann said.
Napster attorneys accuse the RIAA of trying to maintain exclusive control over online music distribution by driving Napster out of business while simultaneously setting up similar avenues of online distribution.
The brief cites a 1999 Warner Bros. study of Tom Petty's pioneering release of the song "Free Girl Now" on MP3.com in advance of its release date. The study concluded that first-week sales were "considerably higher" than for any previous Petty album and that "consumers were favorable about their downloading experiences and reported positive intent to purchase the album."
The brief also takes aim at an RIAA-sponsored study that held Napster responsible for declining CD sales near universities with high-speed Internet access. Napster lawyers say the sharpest drop in surveyed sales occurred before Napster existed. The brief mentioned five other surveys that show little negative effect on CD sales, and it notes that overall CD sales have increased by 8 percent since Napster went online.
'Zenith Of Hypocrisy'
Napster also jabbed at hard-rocking nemeses Metallica, who have their own infringement suit pending against the company.
"The zenith of hypocrisy is the position taken by Metallica, which piously claims that its money is being stolen by Napster users," a footnote in the brief states. "Not only did the band members themselves copy music rampantly in the days before they were wealthy, but in August of 1997, when specifically advised that Metallica songs were being encoded into MP3 files and transferred via the web, they stated succinctly, 'We don't give a f---.' "
The next hearing in the case, waged by RIAA attorneys on behalf of A&M Records and songwriter Jerry Leiber, is scheduled for July 26 in San Francisco Superior Court.