The Recording Industry Association of America (RIAA) is not impressed with the defense offered by Napster that its service is no more illegal than using a VCR to record television shows. In a brief filed in the United States District Court for the Northern District of California, the RIAA called Napster’s position “meritless.”
The RIAA’s brief was filed in response to Napster’s request that the judge hearing the copyright infringement case against it deny the RIAA’s request for a preliminary injunction. The proposed injunction would require Napster to remove songs owned by RIAA members from its service.
The RIAA brief accuses Napster of hiding behind “euphemisms like ‘sharing’ to avoid the real issue.”
According to the RIAA, “Napster cannot hide behind its defense that they do little more than provide a service for ‘sharing.’ Files are not being shared, they’re being copied and distributed to millions worldwide.”
Rejecting Napster’s argument that it was entitled to “fair use” protection under the Audio Home Recording Act (AHRA), the RIAA argues in its brief that the AHRA does not apply to Internet piracy, saying that “no court has ever held that the wholesale copying and distribution of complete copyrighted works could be considered a fair use.”
The brief goes on to say, “Napster is a business that already claims a value in the billions, based overwhelmingly on the piracy of millions of plaintiffs’ copyrighted works. The truth is, the making and distributing of unauthorized copies of copyrighted works by Napster users in not ‘sharing,’ any more than stealing apples from neighbor’s tree is ‘gardening.'”
Edward P. Murphy, President and CEO of the National Music Publishers’ Association, said, “The filing today exposes the fallacy in Napster’s latest efforts to justify its infringing business. This is not a case about home use of music, but about the commercial exploitation of musical works without compensating the people who write and record them.”
In a statement issued Friday, RIAA President Hilary Rosen took aim at both Napster and MP3.com executives. Rosen derided comments made by MP3.com CEO Michael Robertson and Hank Barry, Interim CEO of Napster, at a U.S. Senate Judiciary Committee hearing earlier this week.
Rosen said, “Unfortunately, Napster and MP3.com do not speak for the entire online music community — and they should not be the spokespeople for the legitimate online music community.”
Earlier in the week, Robertson testified that the current licensing process is too burdensome for Internet music providers to have to negotiate with potentially thousands of companies in order to become an “an infringement-free company.”
He added, “This, as you can see, is futile and puts consumers in the position to fill their needs only one way and that is via a systemless, licenseless, lawless copyright-trampling outlet, many of which you are seeing today.”
Barry used his time before the Committee to plead Napster’s case. He said, “It is my firm belief that the consumers who use Napster are not committing copyright violations. Let me clarify that point. Nobody, not even the recording and music publishing industry, is saying that Napster is committing direct copyright infringement. Instead, they are saying that the millions of people who use Napster, the hundreds of thousands of citizens in every state, are copyright infringers.”
Responding to these comments Rosen said, “Many e-commerce companies currently have licenses to legally offer music online. Those companies are not asking for government mandated price controls. They are asking for the enforcement of the existing copyright law so that they do not have to compete against those who are facilitating piracy. It is only those who are not respecting the law who are seeking government mandated price controls.”
Rosen concluded by saying, “Napster did not fool anyone by saying they cannot get licenses when everyone knows they never asked.”