Feds weigh in on Napster case, saying music-sharing service violates copyright law

SAN FRANCISCO - The federal government weighed in on the closely watched case against Napster Inc. for the first time Friday, saying the music-sharing service is not protected under a key copyright law, as the company claims.

In briefs to the 9th U.S. Circuit Court of Appeals, lawyers for the U.S. Copyright Office said Napster has ''no possible defense'' against one of the major arguments by the recording industry that it facilitates widespread copyright infringement.

The agency, whose position is not binding, sided with U.S. District Court Judge Marilyn Hall Patel, who in July ruled for the industry, finding that Napster is contributing to widespread copyright infringement in violation of the 1992 Audio Home Recording Act.

Napster cites the same law, which allows copying of music for personal use, in arguing that it is immune. The San Mateo, Calif.-based Internet start-up allows 22 million users to swap music online.

''Napster asserts ... the Audio Home Recording Act provides its users with immunity from liability for copyright infringement and, in so doing, relieves Napster itself from any derivative liability for contributory or vicarious infringement,'' government lawyers wrote. ''The District Court was correct to reject that defense.''

Lawyers for contended that the government's argument would not effect their case.

''We respectfully disagree with what they have articulated in their filing,'' said Napster attorney Robert Silver.

''Even if the government was correct,'' Silver continued, ''the appeals court should not shut down Napster because of a U.S. Supreme Court precedent unrelated to the Audio Home Recording Act. In allowing the proliferation of video cassette recording machines, the high court said those devices were okay because not all of the material recorded was copyrighted.''

Silver said not all of the music that Napster allows to be shared is copyrighted either, he said.

''The Supreme Court had in mind that it did not want to impeded on technological developments,'' Silver said.

The government's briefs came four weeks before a three-judge panel of the circuit court hears the case here in San Francisco.

The same court spared Napster from an order by Patel that would have shut down the site pending the outcome of the trial. In issuing the stay, the panel said ''substantial questions'' had been raised about the merits and form of the injunction.

Patel granted the injunction at the request of the Recording Industry Association of America, which sued Napster in December for copyright infringement.

Chicago copyright attorney Leonard Rubin said he was surprised that the copyright office took the rare step to voice its views on a dispute between two private entities.

''I think it (the government) felt that this was such an important issue because a Napster victory would open the Internet to copying of copyrighted material with impunity to such a degree that it would emasculate the copyright laws,'' he said

The RIAA was expected to file court briefs backing the government's position.

Cary Sherman, RIAA general counsel, said the government's brief shows how ''twisted'' Napster's argument is.

''Napster is basically arguing that the Audio Home Recording Act gives them immunity. The government is saying that that is simply not true,'' Sherman said.

In its filing Friday, the government wrote that the Audio Home Recording Act protects consumers who copy protected works for personal consumption, not public or commercial distribution. Napster allows users to share music with millions of others, the government wrote.

The act ''makes no reference, and provides no possible defense, to infringement claims based on the public distribution of copied works,'' the government wrote.

Napster, the high-tech bane of the music industry, has said in court briefs that neither its users - who trade music for free - nor the company that helps them do so are in violation of copyright law and are protected by the act in question.

Napster asked the court to reverse and vacate the injunction.

''If users are not themselves infringing, then we are not liable for contributory infringement,'' Napster attorney Jonathan Schiller wrote in Napster's briefs relying on the Audio Home Recording Act.