Napster legal chief David 'Microsoft anti-trust trial' Boies yesterday accused the music industry of "serious errors" in its court filings and that the MP3 sharing software company is protected by the US Home Recordings Act (HRA).
Boies' comments, made in a filing with the US Ninth Circuit Court of Appeal, follows 'friends of the court' filings made last week by both the US Copyright Office and the Department of Justice - Boies' chums in the Microsoft case - that Napster is not protected by the HRA.
The Recording Industry Association of America, which is suing Napster on behalf of the music biz, misrepresented the HRA in its court filings, Boies claimed. It also ignored or played down precedents that might help the software company, he said.
Take the case of Sony vs the movie industry, he said. The 1984 Supreme Court ruling protecting Sony from others' illegal usage of the Japanese company's Betamax VCR provides a precedent for Napster's own innocence. Instead, the RIAA discounted the ruling, "transforming it into an effective nullity".
The RIAA's motivation in all this, he claimed, is to allow its members to "use their control over music copyrights to achieve control over Napster's decentralised technology and prevent it from transforming the Internet in ways that might undermine their present choke-hold on music promotion and distribution".
He added: "This case is not about any diminution in the value of plaintiff's copyrights; none has occurred or is reasonably foreseeable as the result of Napster."
That argument mirrors MP3.com's accusation during its most recent court appearance with recording company Universal that the latter was solely out to shut it down. In that case, the judge, Jed Rakoff, dismissed that argument.
Napster may fare similarly if it pushes the 'they're out to get us' line. The Sony Betamax argument, however, is more promising. The case will come to court early next month. ®