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The American Civil Liberties Union has entered the dissonant debate and legal mosh pit surrounding the online music resource Napster. Last week the ACLU filed a brief to the 9th U.S. Circuit Court of Appeals in support of overturning U.S. District Chief Judge Marilyn Hall Patel’s injunction against Napster, which allows its users to transfer digital versions of songs over the Internet. While making no statement about the underlying copyright infringement issues, the ACLU is arguing that Patel’s injunction was overly broad and would not only have a chilling effect on Internet speech, but could eventually serve to centralize a medium that thus far has been remarkable for its disembodied architecture. “In this battle between giants in the record industry and the Internet service industry, amici believe the district court overlooked the effect of the court’s actions on individual users,” wrote Ann Brick, a staff attorney at the ACLU’s Northern California outpost. Last year, the Recording Industry Association of America sued Napster, since many of the songs shared through its service are copyrighted material. Founded solely on the First Amendment, the ACLU’s brief argues that Patel’s injunction amounts to a prior restraint on file-sharing, or speech, and unlawfully places the burden of identifying copyright violations, or unprotected speech, on Napster and its minions. On July 26, Patel sounded a peal from the bench that reached all corners of the Internet community, ruling that Napster had facilitated massive copyright violations and ordered it shut down pending the outcome of a trial. Two days later, the 9th Circuit stayed the injunction and agreed to hear Napster’s expedited appeal. Napster filed its opening brief early last week. “As written, the injunction places on Napster — and ultimately on Internet users — the burden of identifying the works in which plaintiffs hold valid copyrights, rather than requiring plaintiffs to provide that information to Napster,” Brick wrote. “The injunction is thus a classic prior restraint in violation of the First Amendment: it puts on the speaker the burden of proving that its speech is permissible, rather than requiring those who object to the speech to prove that it is not.” The brief leans on Reno v. ACLU, 117 S.Ct. 2329, a Supreme Court case which held that Internet speech is entitled to the highest level of First Amendment protection. The issues raised by the ACLU are founded on the idea that file-sharing equates with speech. “I don’t know that there are cases that hold that file-sharing is protected speech, but it clearly is,” Brick said. James Wagstaffe of San Francisco’s Kerr & Wagstaffe, an expert on First Amendment issues, said courts traditionally have differentiated between First Amendment and copyright issues. Clearly, the songs themselves are covered by the First Amendment. But, Wagstaffe added, “the State can regulate the intellectual property aspects of speech.” Attorneys for Napster could not be reached for comment, but establishing a constitutional center of gravity for the case would certainly be a twist. Jeffrey Knowles, a partner at San Francisco’s Coblentz Patch Duffy & Bass who is arguing for the plaintiffs in the suit against Napster, said the ACLU got it wrong. “Judge Patel didn’t enjoin the technology. She enjoined a company that employs that technology in a way that causes copyright infringement,” Knowles said. NATIONWIDE DEBATE Napster users need visit the company’s Web site only once to download the file-sharing program. Despite this, Napster is consistently among the most popular sites on the Internet. The program creates a directory of digital songs, called MP3s, available from other Internet users who have installed the Napster program on their home computers and are logged on to the Internet. Several other computer programs, as well as e-mail, allow person-to-person file transfers over the Internet, and some of those have also been rife with probable copyright violations. But Napster’s ease of use and popularity have placed it at the center of a nationwide debate and landed it on the cover of Newsweek. The long-term effects of Patel’s ruling, the ACLU argued, are ominous. “The injunction could force intermediary hosts of file-sharing programs to be choke points for reviewing the speech of every individual before it could be sent to its intended audience. Expansion of this principle to other potential choke points, such as classic search engines or Internet service providers, could transform the distinctively user-empowered model of the Internet into a highly centralized medium like television,” the brief read. Again, Knowles disputed the idea. “My client would never try to enjoin e-mail or peer-to-peer technology.” Brick suggested the court find an alternative to resolve what is seen as a conflict between the technology of cyberspace and centuries-old laws. “It may be that you need a remedy other than an injunction,” Brick said. If a judge finds need to address the copyright issues, she suggested solutions such as compulsory royalties — in other words, charge Napster each time someone downloads a protected song using the company’s software. Napster attorneys are pushing for a quick hearing in the case, possibly the first week in October. Attorneys for the recording industry and for composers in a concurrent suit are asking for a delay. The 9th Circuit indicated in its order blocking Patel’s injunction that it would hear the case as soon as possible.

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