Napster Issues Final Statement for Appeal

Ongoing sparring continues between recent courtroom victor, the Recording Industry Association of America
(RIAA), and underdog Napster, the
much-beleaguered online music provider.

Napster released a statement entitled “Napster to RIAA: The Issue is Not
the Copyright, It’s the Control,” Tuesday to the Ninth Circuit Court of
Appeals in appeal of a preliminary injunction against the music provider.

The statement responds to a document filed Sept. 8, entitled “RIAA,
NMPA to Napster: It’s Not the Technology, It’s the Theft,” which was
prepared by the RIAA and the National Music
Publishers Association
. Napster had until September 12 to reply.

According to the Napster statement:

“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. 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 recording industry is attempting in this case to try to maintain
control over music distribution,” said Napster attorney David Boies. “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.”

The brief reinforced Napster’s key defenses to the RIAA lawsuit,
specifically the Audio Home Recording Act (AHRA), which Napster contends
that the
plaintiffs in their brief disregarded key language in the AHRA and
substituted words that better suited their purpose.

According to Napster, 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 Ninth Circuit has already resolved this question in
Napster’s favor.

The Napster brief is the last filing in a series set in motion by the
District Court’s preliminary injunction on July 26, 2000. At that time, U.S.
District Court Judge Marilyn Hall Patel ordered Napster to halt the sharing
of songs owned by RIAA members. Two days later, and hours before the
injunction would have taken effect, the U.S. Court of Appeals in San
Francisco issued a stay.

An oral argument is scheduled for Oct. 2.

The courtroom battle between the two has been going on since December
1999 when the RIAA filed suit against Napster Inc., alleging it is operating
as a haven for music piracy on the Internet.

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