Napster files brief arguing that court order was wrong

In July, the RIAA won a preliminary injunction against Napster that in effect meant the company would have to shut down the operation of its file sharing service pending the outcome of a full hearing on the copyright issues of the case. Two days later, Napster won a reprieve in the Court of Appeals, allowing the service to continue in the meantime.

Napster CEO Hank Barry said the best result would be to settle the case with the RIAA out of court. “We have been trying to propose structures that will compensate artists,” said Barry. “We have been doing that from day one.”

Napster is claiming that the original decision against it, by Judge Marilyn Hall Patel, was flawed in both fact and law.

"We believe that the District Court simply did not understand the Napster technology and how it is used by the Napster community," said Barry. "The court disregarded the studies that show Napster users increase their CD purchases, and that they use Napster to enjoy MP3 and WMA copies of music they already own in other formats and to sample music before deciding what to buy."

The brief challenged the scope of the injunction, which would have forced an immediate shutdown of the company, saying:

"The decision of the District Court imposed an injunction of unparalleled scope. The District Court ordered Napster to redesign its technology in a way that deprived Napster's users and the 98% of artists [the RIAA does] not represent of Napster's revolutionary peer-to-peer internet technology. It ordered Napster to do so without determining that any such redesign was actually feasible (it is not) and without consideration of the detriment to functionality that even theoretical redesign would impose."

Specifically, the brief contends that the court erred in the following ways:

• By deciding that the US Audio Home Recording Act ("AHRA") did not apply to the case;
• By denying non-commercial copying the protection of the AHRA solely because of the potential scale permitted by the internet;
• By misapplying existing law, under which Napster should not be held contributorily liable for copyright infringement because, among other reasons, the Napster software and directory are capable of, and are already being used for, several substantial non-infringing uses;
• By holding Napster liable for unauthorised copying by users of the service when Napster as an ISP has only general knowledge that copyrighted works are available through its service and neither specific knowledge nor the ability to differentiate between infringing and non-infringing uses of its system;
• By failing to afford Napster the protection to which it is entitled under the US Digital Millennium Copyright Act ("DMCA"), which protects an ISP against claims of contributory liability where the ISP timely responds to notices of alleged copyright infringements to bar access to the identified location of the infringing material;
• By committing a variety of errors with evidence;
• By imposing an unprecedented, unfair, and overbroad remedy that is in fact the first time any US federal court has ever forced the provider of a technology with substantial non-infringing uses to redesign its technology. To comply with the judge's ruling, Napster would have to create a centralised database, thus eliminating the entire value of the peer-to-peer technology.

Referring to existing law, laid down in a case in which Sony was involved, legal counsel for Napster David Boies said:

"Sony holds that courts should defer to Congress to address technological developments that involve the application of copyright law, and Congress specifically intended the Audio Home Recording Act to cover non-commercial copying of music regardless of scale. If this injunction is allowed to stand, the precedent would impede the development of a wide range of new technologies."