Feds say Napster can't hide behind law

SAN FRANCISCO--The federal government weighed in on the closely watched case against Napster for the first time yesterday, 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 claims by the recording industry that it aids widespread copyright infringement.

The agency, whose position is not binding, sided with U.S. District Court Judge Marilyn Hall Patel, who in July ruled 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," government lawyers wrote. "The District Court was correct to reject that defense."

The government's briefs comes four weeks before a three-judge panel of the circuit court hears the case 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.

In its filing yesterday, the government said 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 said.

Napster, the high-tech bane of the music industry, has said in court briefs that its users--who trade music for free-- are protected by the act in question.

"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.