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"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 choke hold on music promotion and distribution."
NAPSTER MAKES FINAL PLEA BEFORE TRIAL BEGINS
Attorney David Boies Reiterates How The Black Robe Really Brings Out Judge Patel’s Eyes
Napster, the online music file-swapping service embroiled in much litigation, made its final written presentation to the 9th Circuit Court of Appeals before oral arguments take place Oct. 2. The latest legal play is a reply to a brief filed last week by the RIAA, who are suing the company.

"This case is not about any diminution in the value of Plaintiffs' copyrights; none has occurred or is reasonably foreseeable as the result of Napster," the company's brief stated. "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 choke hold on music promotion and distribution."

Napster's lead attorney David Boies reiterated his clients' belief that the recording industry is attempting to maintain control over music distribution. "By repeatedly refusing Napster's offers of a reasonable license and opposing a compulsory license, they have demonstrated that they are not seeking to be appropriately compensated, but rather to kill or control a technology they view as competition," he said.

The brief reinforced Napster's key defenses to the RIAA lawsuit, which revolve around the Audio Home Recording Act. "Regarding the Audio Home Recording Act, Napster contends that the plaintiffs in their brief disregarded key language in the AHRA and substituted words that better suited their purpose," the brief said. According to its brief, Napster's notes that the plaintiffs ignored the very purpose of the Act's immunity provisions as previously described by, among others, their own General Counsel and that the 9th Circuit has already resolved this question in Napster's favor.

The Napster brief also attempts to expose plaintiffs' attempt to "restrict" the Sony Betamax precedent. In addition, the brief takes issue with "the plaintiffs' attempts to insert a Napster exception into the Digital Millennium Copyright Act."

"It dismantles the framework created by Congress…which insures that Internet companies can continue to function in the face of claims about the actions of their users," it states.

The latest brief is the last filing in a series set in motion by the District Court's preliminary injunction on July 26.

The latest filing comes on the heels of the federal government's raising its voice against Napster for the first time in regard to the closely watched case (hitsdailydouble.com, 9/11).

In briefs to the 9th U.S. Circuit Court of Appeals, lawyers for the U.S. Copyright Office said Napster had "no possible defense" against claims by the recording industry that it facilitates widespread copyright infringement.

On Friday, the RIAA and the National Music Publishers Association filed court briefs backing the government's position.

"Napster's latest defense is yet another veiled attempt to reinvent itself, its legal position and copyright law," said hilary rosen',390,400);">hilary rosen',390,400);">Hilary Rosen, RIAA President/CEO. "The fact is—the law is on our side. We are not suing a technology. We are suing a company that is stealing work that does not belong to them. They cannot build a multi-billion dollar business on the backs of other people's works."

Rosen concluded, "We're confident that the appellate court will uphold Judge [Marilyn] Patel's carefully considered findings."

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