White House enters the Napster fray

The Clinton Administration is taking the recording industry's side in the Napster debate.

In a brief filed Friday, White House attorneys opposed Napster's argument that PCs should be considered home recording devices and, therefore, subject to protection under the Audio Home Recording Act.

In a friend-of-the-court brief, administration lawyers argued that computers were deliberately left out of the 1992 law, which was a compromise between the music industry, the consumer electronics industry and the people who use such devices.

"Permitting Napster to shelter itself behind [the act] would defeat this basic statutory quid pro quo," the White House argued. "Napster's users would be permitted to engage in digital copying and public distribution of copyrighted works on a scale beggaring anything Congress could have imagined... yet the music industry would receive nothing in return."

The Recording Industry Association of America (RIAA) sued Napster in December, charging that the song-sharing service facilitates wrongdoing by letting its users trade copyrighted music for free.

US District Judge Marilyn Hall Patel agreed with the RIAA in a July ruling that would have halted trading of RIAA members' music. That ruling was suspended by the 9th US Circuit Court of Appeals, just hours before it was to have taken effect. The appeals court is in the process of gathering documents from both sides -- as well as from those claiming a stake in the outcome -- before deciding whether a lower court ruling that could shut the site down should stand.

Three weeks ago, Napster filed its first detailed argument to the higher court, claiming Patel's ruling did not consider all of the evidence in the company's favour. Napster argued that the ruling would put the company out of business and force it to cut 40 workers.

Friday was the deadline for the RIAA and other interested parties to respond to Napster's arguments. Napster now has until 12 September to file a rebuttal. The appeals court is expected to hear oral arguments sometime during the first week of October and issue its final ruling sometime after that.

Other groups interested in the groundbreaking case -- which could affect services as common as search engines -- also have jumped into the debate with briefs questioning Patel's decision. Among them are Internet industry groups such as the Computer and Communication Industry Association and the Digital Media Association -- even the American Civil Liberties Union.

On Friday, a group including the National Basketball Association and the Motion Picture Association of America submitted a document in support of the recording industry. The MPAA already has joined RIAA in its a suit against Scour, alleging the company's Scour Exchange file swapping program lets people steal copyrighted content. The charges are similar to those against Napster.

The coalition of content providers said in its brief that, although the Napster case deals with online music, the implications "are far broader, raising the potential for unlimited Internet piracy of motion pictures, television programs, books, software, interactive games and photographs".

The Napster battle comes as other fledgling digital music companies are feeling the fallout of the entertainment industry, which has filed several lawsuits in an attempt to maintain control over who listens to their music -- and when and where they do it.

Just two weeks ago, Scour cut most of its staff, claiming the entertainment industry lawsuit has scared away investors.

Last week, US District Judge Jed Rakoff dealt a blow to digital music storage company MP3.com in a separate case, saying the company's My.MP3.com database wilfully infringed the copyrights of Seagram's Universal Music unit. The judge ordered the company to pay $25,000 for each compact disc in its database.

MP3.com has claimed that it takes measures to ensure that listeners actually own the CDs stored on its site. But Universal successfully argued that, among other things, MP3.com's interest in making money from the practice without paying the owners of the music was a violation of the fair-use doctrine, which lets people take music they already own and make multiple copies for personal use. The Universal ruling could mean that MP3.com could pay as much as $118m for copyright violations, though an official amount still must be tallied.

By the time the Universal case went to trial, MP3.com already had settled with four other record companies for an undisclosed sum.

Unlike MP3.com, Napster does not actually store music on its servers. Instead, it provides downloadable software that searches people's hard drives for songs and allows the music to be shared with other Napster users.

Reuters contributed to this report.

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