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While noncommittal on whether Napster should be held liable for infringing on the copyrights of the major record labels, several Internet industry coalitions and trade groups, representing companies such as America Online, Yahoo and Intel, are taking issue with a federal judge’s ruling last month in the bellwether case. The industry groups are filing friend-of-the-court briefs Friday in the Recording Industry Association of America’s lawsuit against Napster, the Redwood City, Calif.-based online music-sharing service with some 20 million users. Two weeks ago the company asked the 9th U.S. Circuit Court of Appeals to overturn U.S. District Court Judge Marilyn Hall Patel’s July 26 order that Napster stop users from trading copyrighted songs — effectively shutting down the service. The appellate court is now hearing from several groups of Internet, information technology and electronics companies concerned that the ruling could limit consumers’ rights to enjoy music and media in ways historically considered “fair use,” and that it could impose copyright policing responsibilities on Internet service providers. The Digital Media Association, a trade group representing digital online audio and video interests with a roster of members including RealNetworks, Liquid Audio, Tower Records, AOL and Yahoo, is filing one brief. DiMA members are concerned that the lower court failed to properly apply the longstanding “Betamax standard,” which was set by the Supreme Court in the Universal v. Sony case in 1984. That standard requires that technologies, such as the VCR, be judged on whether they are “capable of substantial noninfringing uses” — in other words, legal uses. Jonathan Potter, DiMA’s executive director, says the group’s members are concerned that if the reasoning is applied more broadly to software and media management technologies it will subject the technology, rather than individual behavior, to litigation when copyrights are infringed. A second brief is being filed on behalf of the Ad-Hoc Copyright Coalition, NetCoalition.com, the U.S. Internet Industry Association, the Commercial Internet Exchange, the U.S. Telecom Association, the Computer and Communications Industry Association and the Information Technology Association of America. The copyright coalition was formed during the drafting of the Digital Millennium Copyright Act of 1998, in which Congress updated copyright laws to make them more relevant to digital media. The coalition, which includes members such as AOL, Yahoo, AT&T, MCI and Bell Atlantic (now Verizon), fought for and won limitations on the liability of ISPs for copyright infringements committed by users. In the Napster case, this group is arguing that Patel incorrectly applied parts of Section 512 of the copyright act that pertain to ISP liability. “We’re taking a neutral position on whether Napster should be held liable for copyright infringement and on the ultimate question about whether Section 512 should or should not be applied in the case,” said Bruce Joseph, an attorney with Wiley Rein & Fielding, which is representing the group. But the brief takes issue with Patel’s ruling on several points of law, including holding Napster to a higher standard of knowledge. Under the act, ISPs must have actual knowledge of infringement or that a particular activity is infringing in order to be found in violation. The appellate court will probably hear from other groups interested in offering friend-of-the-court briefs. The Consumer Electronics Association and a group of law professors are expected to file briefs focusing on the application of the Sony Betamax standard. The RIAA’s response to Napster’s legal brief is due Sept. 8. That association is reportedly seeking supportive briefs from entertainment industry groups. Napster is expected to file a reply on Sept. 12. After that, the appeals court will schedule a second hearing on the RIAA’s motion for a preliminary injunction. Legal experts say the outcome of that hearing will probably determine whether Napster will be shut down for good. Related articles from The Industry Standard Napster to Court: The Judge Screwed Up Learning to Love Napster Killing the Killer App Copyright (c)2000 The Industry Standard

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