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"If the decision of the District Court is permitted to stand, every new technology used to transmit, route, or exchange data subject to the copyright laws using the Internet—and many existing technologies—will be affected."
—from Napster's brief
NAPSTER WARS:
THE EMPIRE STRIKES BACK
Napster’s Brief Is Anything But
In the latest round of legal maneuvering between the traditional and online music industries, widely popular file-sharing service Napster on Friday submitted a not-so-brief brief to the 9th Appellate Court requesting that a judge's injunction order to shut down the service be vacated.

The Recording Industry Association of America's lawsuit on behalf of the music industry against Napster has been on a legal fast track since a federal appeals court in July granted Napster a last-minute reprieve, staying Judge Marilyn Patel's original order to shut the service down (hitsdailydouble.com 7/28).

Napster's legal team, led by David Boies, threw a hopeful counterpunch at the substance of Patel's order, asserting that “decisions of vital importance were wrongly decided by the trial court,” and [we] “compel this court to reverse the injunction.”

In an 80-page filing late Friday, Napster lawyers contend that using its file-sharing software for non-commercial use is fair and legal, and that Napster is not liable for and does not contribute to copyright infringement because its users are not infringing on copyrights.

Further, Napster states that it cannot comply with the District Court's order as drafted and continue to operate its peer-to-peer system. "More generally, if the decision of the District Court is permitted to stand, every new technology used to transmit, route, or exchange data subject to the copyright laws using the Internet—and many existing technologies—will be affected," the brief said.

“The primary initial use of the [Napster] technology (and the purpose for which it was initially designed) is to provide Internet users with a list of other users who are prepared to share, on a one-to-one non-commercial basis, certain music files,” the brief says. “Non-commercial sharing of music among individuals is common, legal and accepted.”

Lawyers for Napster said in the document that “even the President of the Recording Industry Association of America (hilary rosen',390,400);">hilary rosen',390,400);">Hilary Rosen) acknowledges ‘it's cool to make tapes, it's cool to trade them with your friends. It's good to share music.'”

The brief goes on to say that the District Court entered a preliminary injunction against Napster based on its conclusion that Napster was being widely used for illegal distribution of copyrighted music.

“In so doing, the court resolved several issues of first impression against Napster, in favor of the record industry, and in a way that limits the exchange over the Internet of information that could indisputably be lawfully exchanged in other ways,” it says. The Court's decision is “contrary to principles articulated in controlling Supreme Court precedent.”

In the brief, Napster asks, among many issues, if the District Court erred in holding that the Audio Home Recording Act only applies to actions brought under the AHRA and not to all actions; whether non-commercial consumer copying permitted under the AHRA loses the protection of the AHRA solely because of the potential scale of such copying permitted by the Internet; whether the District Court erred in holding that the standards for contributory and vicarious infringement set out in Sony Corp. of America v. Universal City Studios, Inc., do not apply to file-sharing software and an Internet directory; and whether an Internet Service Provider may be contributorily [how's that for a lawyerly adverbial construct—Ed.] or vicariously liable for unauthorized copying by its subscribers.

The RIAA's reply to the brief on appeal is slated to be filed Sept. 12.

In related news, Napster passed the 25 million-user mark this week.

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