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If Napster thought Judge Marilyn Hall Patel disapproved of the file-sharing service when she ruled against it last month, wait till she gets a load of the company’s new legal filing. Late Friday, Napster’s lawyers filed a brief that spells out Judge Patel’s “errors” in her preliminary injunction ruling, which was temporarily stayed by an appeals court just hours before the injunction would have effectively shut down San Mateo, Calif.-based Napster. While the software company is allowed to continue operations pending a hearing, the brief filed Friday in appeals court is part of Napster’s attempt to remove any question of the legal validity of its service – namely noncommercial peer-to-peer file sharing. “The trial court misunderstood and misapplied the standards for contributory and vicarious infringement,” Napster attorney Jonathan Schiller said in a conference call with reporters Friday evening. Chief among the evidentiary errors committed by the court, according to the brief, was Patel’s dismissal of legal precedents such as the Diamond Rio case, in which the 9th U.S. Circuit Court of Appeals found that the Audio Home Recording Act immunizes the noncommercial copying of digital music files. Napster also contends that Patel erred in finding Napster incapable of substantial noninfringing uses, failing to find Napster within the safe harbor of the Digital Millennium Copyright Act, and placing the burden of proof on Napster as to the validity of its affirmative defenses, according to the brief. In the filing, Napster’s lawyers also complain that the injunction ruling is “impermissibly broad,” arguing that it would be impossible to comply with the injunction. The judge’s July decision would have forced Napster to remove all music by artists represented by the major labels party to the suit. “The court’s ruling was unprecedented, unfair and overbroad,” Schiller said in the conference call. “The district court said Napster could write a program to obtain authorizations [from copyright holders]. This would force Napster to create a centralized database and eliminate the entire value of peer-to-peer technology.” “Napster cannot comply with the District Court’s order as drafted and continue to operate its peer-to-peer system,” reads the brief. “More generally, if the decision of the District Court is permitted to stand, every new technology used to transmit, route or exchange data subject to the laws using the Internet — and many existing technologies — will be affected.” Napster’s client software, which can be downloaded at no charge from its Web site, gives users access to hundreds of thousands of MP3 titles and provides a means of freely distributing the music files between members of the “Napster community.” The Recording Industry Association of America, representing the music labels in the suit, objects to the trading of files containing copyright material owned by the plaintiffs. Napster, however, contends that all the file-swapping operates on a noncommercial basis and is directly done by users and not the company itself. Leonard Rubin, head of intellectual property for Chicago law firm Gordon & Glickson LLC, says Patel’s request to distinguish between the copyrighted titles and those not owned by the music labels has traditionally been given a fair amount of credence in similar types of cases. He notes that Napster’s defense on these grounds would likely only stand if the company could show that the effect of altering the technology would be devastating to a large segment of society. “It seems that it is a weak point to raise,” Rubin says. The RIAA’s response to Napster’s legal brief is due Sept. 8; Napster will file a reply on the 12th. 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 likely determine whether or not Napster will be shut down for good. “Contrary to what some of you have reported, Napster will prevail,” said Hank Barry, Napster CEO and a partner with VC firm Hummer Winblad, to journalists participating in the conference call. He added that although the record labels have rejected several proposals put forth by Napster for compensating artists, the company would continue to seek a “private resolution.” “Napster is not a lawsuit; it’s an Internet music community,” Barry said. “This is the type of case that should be settled privately among the parties.” Ashlee Vance writes for the IDG News Service. Related articles from The Industry Standard The Next Piracy Panic: Software Hollywood Wins DVD-Copy Case Carnivore May Lose Some Teeth Copyright (c)2000 The Industry Standard

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