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[FYI] (Fwd) FC: Clinton administration takes on Napster in court cas
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- Subject: [FYI] (Fwd) FC: Clinton administration takes on Napster in court cas
- From: "Axel H Horns" <horns@ipjur.com>
- Date: Sat, 9 Sep 2000 10:13:48 +0200
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------- Forwarded message follows -------
Date sent: Fri, 8 Sep 2000 19:16:42 -0400
From: Declan McCullagh <declan@well.com>
To: politech@politechbot.com
Subject: FC: Clinton administration takes on Napster in court case
Send reply to: declan@well.com
The Clinton administration is siding with the entertainment industry
in its attempts to shut down Napster. It just filed a 37-page amicus
brief in the court case saying Napster can't use the Audio Home
Recording Act of 1992 (http://www.virtualrecordings.com/ahra.htm) as a
legal shield. The brief says "the activities of Napster's users do not
even arguably come within the terms of the statute" and the district
court's ruling should be upheld. The Justice Department, the Patent
and Trademark Office, and the Copyright Office signed the brief. By
way of possible explanation, one of my colleagues has compiled
(http://www.wired.com/news/politics/0,1283,38528,00.html) a handy list
of entertainment industry contributions to Democrats. :)
-Declan
********
http://www.politechbot.com/docs/napster-amicus.html
http://www.politechbot.com/docs/napster-amicus.wpd
NOS. 00-16401 & 00-16403
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
____________________
A&M RECORDS, INC., et al.
Plaintiffs-Appellants,
v.
NAPSTER, INC.,
Defendant-Appellant.
____________________
JERRY LEIBER, individually and d/b/a JERRY LEIBER MUSIC, et al.,
Plaintiffs-Appellants,
v.
NAPSTER, INC.,
Defendant-Appellant.
____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
____________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
____________________
DAVID O. CARSON DAVID W. OGDEN
General Counsel Assistant Attorney General
J. KENT DUNLAP MARK B. STERN
SCOTT R. McINTOSH
United States Copyright Office Attorneys, Appellate Staff
Library of Congress
101 Independence Ave. S.E. Civil Division, Department of Justice
Washington, D.C. 20540 601 D Street N.W., Room 9550
Washington, D.C. 20520
ALBIN F. DROST
Acting General Counsel Counsel for the United States
JUSTIN HUGHES
United States Patent and Trademark Office
P.O. Box 15667
Arlington, VA 22215
Of Counsel
[...]
SUMMARY OF ARGUMENT
Section 1008 of the Audio Home Recording Act does not protect
Napster from the plaintiffs' claims of copyright infringement.
Section 1008 was adopted to address a very different phenomenon -
the noncommercial consumer use of digital audio recording devices,
such as DAT tape decks, to perform "home taping" of musical
recordings. Napster's effort to bring itself within the ambit of
Section 1008 flouts the terms of the statute and conflicts with the
basic policies of the Act.
1.
Section 1008 prohibits actions for copyright infringement based on:
(1) the manufacture, importation, or distribution of "a digital
audio recording device, a digital audio recording medium, an analog
recording device, or an analog recording medium"; or (2) "the
noncommercial use by a consumer of such a device or medium for
making digital musical recordings or analog musical recordings."
Although Napster insists that the activities of its users are
protected by Section 1008, and that it therefore cannot be held
accountable for contributory or vicarious infringement based on
those activities, Napster's defense cannot possibly be squared with
the actual terms of Section 1008.
First, it is undisputed that Napster's users are not using any
"device" or "medium" specified in Section 1008, and Section 1008
applies only to consumer use of "such a device or medium." Second,
when Napster's users create and store copies of music files on
their computers' hard disks, they are not making "digital musical
recordings or analog musical recordings" as those terms are defined
in the Act. Third, Napster's users are engaged not only in copying
musical recordings, but also in distributing such recordings to the
public, and Section 1008 immunizes only noncommercial copying
("noncommercial use * * * for making digital musical recordings or
analog musical recordings"), not public distribution. Fourth,
unlike such copyright provisions as the fair use provision (17
U.S.C. =A7 107), Section 1008 does not designate any use of
copyrighted works as non-infringing; it merely bars "action[s] * *
* alleging infringement" based on such uses. Assuming arguendo that
Napster's users are otherwise engaged in acts of copyright
infringement, nothing in Section 1008 purports to render those
actions non-infringing, and hence the claims against Napster for
contributory and vicarious infringement would remain unaffected
even if Section 1008 did apply to Napster's users.
2.
The AHRA was intended by Congress to embody a compromise between
the music industry on the one hand and the consumer electronics
industry and consumer groups on the other. At the heart of that
compromise is a quid pro quo: in exchange for allowing
noncommercial consumer use of digital audio recording technology
(Section 1008), the music industry receives financial compensation
(Sections 1003-1007) and protection against serial copying (Section
1002). Permitting Napster to shelter itself behind Section 1008
would defeat this basic statutory quid pro quo: Napster's users
would be permitted to engage in digital copying and public
distribution of copyrighted works on a scale beggaring anything
Congress could have imagined when it enacted the Act, yet the music
industry would receive nothing in return because the products used
by Napster and its users (computers and hard drives) are
unquestionably not subject to the Act's royalty and serial copying
provisions.
Napster asserts that, despite the precision of the language in
Section 1008, Congress actually meant to provide immunity for all
noncommercial consumer copying of music in digital or analog form,
whether or not the copying fits within the terms of Section 1008.
Nothing in the legislative history of the Act supports that
argument. And nothing in RIAA v. Diamond Multimedia Systems Inc.,
180 F.3d 1072 (9th Cir. 1999), the decision on which Napster places
principal reliance, supports the argument either. Section 1008 was
not at issue in Diamond Multimedia, and nowhere does the case hold
that Section 1008 provides the kind of omnibus immunity for digital
copying that Napster invokes here.
ARGUMENT
SECTION 1008 OF THE AUDIO HOME RECORDING ACT OF 1992 DOES NOT
EXCUSE
NAPSTER FROM LIABILITY FOR
COPYRIGHT INFRINGEMENT
Napster asserts that Section 1008 of 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.
The district court was correct to reject that defense. Napster's
invocation of Section 1008 is flatly inconsistent with the terms of
the statute and the legislative policies that underlie the AHRA.
Accordingly, if Napster is otherwise liable under the copyright
laws, Section 1008 does not relieve Napster of liability.
A. Napster's Immunity Defense Is Foreclosed by the Plain Language
of
Section 1008
"The 'starting point for interpreting a statute is the language of
the statute itself.'" Exxon Mobil Corp. v. United States
Environmental Protection Agency, 217 F.3d 1246, 1249 (9th Cir.
2000) (quoting Consumer Product Safety Commission v. GTE Sylvania,
Inc., 447 U.S. 102, 108 (1980)). Napster's discussion of Section
1008 is notably selective about following this rule. Napster
correctly points out that the introductory language of Section 1008
- "[n]o action may be brought under this title alleging
infringement of copyright" - makes Section 1008 potentially
applicable to any infringement action under Title 17, not just an
action under the AHRA itself. But Napster conspicuously fails to
address the remaining language of Section 1008, and makes no effort
to explain how that language can be read to protect Napster's users
or Napster itself.
Napster's reluctance to come to grips with the statutory language
is understandable, because the activities of Napster's users do not
even arguably come within the terms of the statute. Not only does
the language of Section 1008 foreclose Napster's immunity defense,
but it does so in four separate and independent ways. Napster's
argument thus depends on a wholesale disregard of what Section 1008
actually says.
1. Napster's Users Are Not Using Any of the "Devices" or "Media"
Covered by Section 1008
Section 1008 identifies four specific kinds of products whose
manufacture, distribution, and noncommercial use Congress wished to
shield from actions for copyright infringement. Those products are
"[1] a digital audio recording device, [2] a digital audio
recording medium, [3] an analog recording device, or [4] an analog
recording medium." 17 U.S.C. =A7 1008. Section 1008 prohibits
actions for copyright infringement based on "the manufacture,
importation, or distribution" of these four types of devices and
media. Section 1008 also prohibits actions for copyright
infringement based on "the noncommercial use by a consumer of such
a device or medium" for making digital or analog musical
recordings.
Nothing in the language of Section 1008 purports to grant
manufacturers, distributors, or consumers any immunity with respect
to products other than the devices and media specified in Section
1008 itself. To the contrary, if an action for infringement does
not involve the specified devices or media, it falls outside the
scope of Section 1008 altogether. By its terms, Section 1008
protects consumers only from infringement actions that are based on
"noncommercial use * * * of such a device or medium" (emphasis
added). If an infringement action rests on consumer use of other
products, Section 1008 on its face has no applicability to such an
action.
In this case, the plaintiffs' copyright claims are not based on the
use of any of the devices or media covered by the terms of Section
1008. Napster's users exchange music by using personal computers to
locate and transfer files from one computer hard disk to another.
Neither a personal computer nor its hard disk constitutes "a
digital audio recording device, a digital audio recording medium,
an analog recording device, or an analog recording medium." Napster
itself does not suggest otherwise.
The terms "digital audio recording device" and "digital audio
recording medium" are specifically defined in the Act. A "digital
audio recording device" is defined, with exceptions not relevant
here, as any machine or device "the digital recording function of
which is designed or marketed for the primary purpose of, and that
is capable of, making a digital audio copied recording for private
use." 17 U.S.C. =A7 1001(3) (emphasis added). A "digital audio
recording medium" is defined (again with inapplicable exceptions)
as "any material object * * * that is primarily marketed or most
commonly used by consumers for the purpose of making digital audio
copied recordings by use of a digital audio recording device." Id.
=A7 1001(4)(A) (emphasis added).
This Court has already held that the statutory definition of
"digital audio recording device" does not reach personal computers
and their hard drives. RIAA v. Diamond Multimedia Systems Inc., 180
F.3d 1072, 1078 (9th Cir. 1999). Although personal computers are
"capable of" making "digital audio copied recordings," neither they
nor their hard drives are "designed or marketed for the primary
purpose of" making such recordings. Ibid. For similar reasons, hard
drives fall outside the statutory definition of "digital audio
recording medium," since they are not "primarily marketed or most
commonly used * * * for the purpose of" making such recordings.
Unlike "digital audio recording device" and "digital audio
recording medium," the terms "analog recording device" and "analog
recording medium" are not expressly defined in the Act. Congress
presumably had in mind the analog counterparts to digital audio
recording devices and media - for example, traditional analog tape
decks and analog recording tapes. Whatever the precise scope of
these terms, however, they cannot encompass personal computers and
their hard drives, because computers process and store information
in digital rather than analog form. Thus, Napster users are not
even arguably using any of the devices and media referred to in
Section 1008.
2. Napster's Users Are Not Making "Digital Musical Recordings" Or
"Analog Musical Recordings"
Section 1008 protects the noncommercial consumer use of digital and
analog recording devices and media for making "digital musical
recordings or analog musical recordings." 17 U.S.C. =A7 1008. Even
if Napster's users were using the specified devices or media, they
are not making "digital musical recordings" or "analog musical
recordings." Their activities fall outside the scope of Section
1008 for that reason as well.
The Act defines a "digital musical recording" as "a material object
* * * in which are fixed, in a digital recording format, only
sounds, and material, statements, or instructions incidental to
those fixed sounds, if any * * * ." 17 U.S.C. =A7 1001(5)(A)(i)
(emphasis added). The definition goes on to exclude, among other
things, "a material object * * * in which one or more computer
programs are fixed * * * ." Id. =A7 1001(5)(B)(ii).
Napster's users copy music files to their computers' hard drives.
Hard drives store data of all kinds, from word processing files to
multimedia files, and they ordinarily store computer programs as
well. As a result, hard drives fall outside the statutory
definition of "digital musical recording" in two respects: first,
they are not objects in which "only sounds" are "fixed," and
second, they are objects in which "one or more computer programs
are fixed." See Diamond Multimedia, 180 F.3d at 1076 ("a hard drive
is a material object in which one or more programs are fixed; thus,
a hard drive is excluded from the definition of digital musical
recordings").
Unlike "digital musical recording," "analog musical recording" is
not a defined term under the Act. However, just as a computer's
hard drive cannot be an "analog recording medium" (see p. 15
supra), neither can it be (or be used to store) an "analog musical
recording," because hard drives store data in digital rather than
analog form. Thus, Napster's users cannot be claimed to be making
either "digital musical recordings" or "analog musical recordings"
- and if a consumer is not making a digital or analog musical
recording, the terms of Section 1008 do not provide him with any
immunity.
3. Section 1008 Provides Immunity Only for Noncommercial Copying,
Not
for Public Distribution
The Copyright Act grants the owner of a copyright a number of
distinct legal rights. See 17 U.S.C. =A7 106(1)-(5). The most
widely known right is the right of reproduction - the "exclusive
right * * * to reproduce the copyrighted work in copies or
phonorecords." Id. =A7 106(1). However, the Copyright Act also
grants the copyright holder a separate and distinct right of public
distribution - the "exclusive right * * * to distribute copies or
phonorecords of the copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or lending." Id. =A7
106(3).
The plaintiffs assert not only infringements on the right of
reproduction, but also infringements on the right of public
distribution. In the proceedings below, Napster stated that it has
at least 20 million users, all of whom are able to use Napster's
service to access and download music files containing copyrighted
sound recordings. When a Napster user makes the music files on his
or her hard drive available for downloading by other Napster users,
he or she is distributing the files to the public at large. Cf.
Michaels v. Internet Entertainment Group, Inc., 5 F. Supp. 2d 823,
830-31 (C.D. Cal.1998); Playboy Enterprises, Inc. v. Webbworld,
Inc., 991 F. Supp. 543, 551 (N.D. Tex. 1997), aff'd mem., 168 F.3d
486 (5th Cir. 1999); Marobie-Fl, Inc. v. Nat'l Ass'n of Fire and
Equip. Distributors and Northwest Nexus, Inc., 983 F. Supp. 1167,
1173 (N.D. Ill. 1997).
To the extent that Napster users are engaged in the distribution of
copyrighted works to the public at large, such activity falls
outside the scope of Section 1008. The language of Section 1008 is
directed at uses that infringe on the right of reproduction, not at
uses that infringe on the right of public distribution. By its
terms, Section 1008 only bars infringement actions "based on the
noncommercial use" of the specified products "for making digital
musical recordings or analog musical recordings" - in other words,
for making copies of the music. Section 1008 makes no reference,
and provides no possible defense, to infringement claims based on
the public distribution of copied works. Thus, even if it were
proper to treat the use of Napster's service for the public
dissemination of copyrighted music as a "noncommercial" consumer
use, which is far from clear, it is not the use at which the terms
of Section 1008 are directed - the "making [of] digital musical
recordings or analog musical recordings."
4. Section 1008 Does Not Transform Infringing Consumer Uses Into
Non-Infringing Ones
As the foregoing discussion shows, the language of Section 1008
cannot be read to encompass the activities of Napster's users. But
even if Section 1008 did apply to Napster's users, it would not
provide Napster itself with a defense to liability for contributory
or vicarious infringement. That is because the terms of Section
1008 address only whether consumers can be sued for infringement;
nothing in Section 1008 addresses or changes whether they are
engaged in infringement.
When Congress has chosen to make particular uses of copyrighted
works non-infringing, it traditionally has said so expressly. For
example, the fair use provision of the Copyright Act provides that
"the fair use of a copyrighted work * * * is not an infringement of
copyright." 17 U.S.C. =A7 107 (emphasis added). Congress has spoken
with equal clarity regarding other uses. See, e.g., id. =A7 108
("it is not an infringement of copyright" for library or archive to
reproduce single copies of works under specified conditions); id.
=A7 110 (specified performances and displays of works "are not
infringements of copyright"); id. =A7 117 ("it is not an
infringement" for owner of copy of computer program to make an
additional copy for, inter alia, archival purposes).
In contrast, Section 1008 of the AHRA conspicuously does not say
that the activities it describes "are not an infringement of
copyright." Instead, Section 1008 provides only that "[n]o action
may be brought under this title alleging infringement of copyright"
based on such activities. The legislative record indicates that
this language reflects a deliberate decision by Congress to relieve
consumers from the threat of copyright liability without altering
the underlying contours of the copyright laws or resolving the
legal debate over the legality of home taping. In the words of the
Senate Report :
[S]ection 1002 [now Section 1008] provides only that certain
copyright infringement actions are precluded. The section does
not purport to resolve, nor does it resolve, whether the
underlying conduct is or is not infringement. The committee
intends the immunity from lawsuits to provide full protection
against the specified types of copyright infringement actions,
but it has not addressed the underlying copyright infringement
issue * * * .
Senate Report at 52 (emphasis added).
Thus, assuming for present purposes that Napster's users are
engaged in copyright infringement, their actions would remain
infringing even if Section 1008 were applicable to them, since
Section 1008 does not purport to address the underlying issue of
infringement. And if Section 1008 does not transform the actions of
Napster's users into non-infringing uses, then it cannot provide
shelter to Napster itself. In invoking Section 1008, Napster has
argued that it cannot be liable for contributory or vicarious
infringement if its users are not themselves engaged in
infringement. Once it is recognized that Section 1008 does not
alter whether the consumer uses that it addresses are infringing,
Napster's argument falls apart.
It is noteworthy in this regard that Section 1008 expressly
provides immunity not only for the specified noncommercial consumer
use of digital and analog recording devices and media, but also for
the manufacture and distribution of such products. Napster's
argument assumes that the immunity conferred on consumers is
sufficient by itself to preclude liability for contributory or
vicarious infringement on the part of the firms whose products are
being used. But if that were the case, then there would have been
no reason for Congress to include distinct immunity protection for
manufacturers in Section 1008 itself, and the manufacturer immunity
language in Section 1008 would serve no purpose. Napster's argument
thus conflicts with the elementary principle that "legislative
enactments should not be construed to render their provisions mere
surplusage." Dunn v. CFTC, 519 U.S. 465, 472 (1997). The fact that
Congress found it necessary to extend an express statutory grant of
immunity to manufacturers, as well as to consumers, confirms that
Congress did not regard consumer immunity from suit as sufficient
by itself to insulate other parties from liability for contributory
or vicarious infringement.
B. Napster's Reliance on Section 1008 Is Inconsistent With the
Policies Underlying the AHRA
In Diamond Multimedia, this Court observed that it "need not resort
to the legislative history [when] the statutory language is clear."
180 F.3d at 1076. Given the clarity with which the language of
Section 1008 prescribes (and circumscribes) the scope of statutory
immunity under the AHRA, and given Napster's manifest inability to
bring this case within the language of the statute, resort to the
legislative history of the AHRA is therefore unnecessary.
Nevertheless, if recourse is had to the legislative history, it
reinforces the conclusion that Section 1008 does not protect
Napster. Far from advancing the policies of the AHRA, Napster's
invocation of Section 1008 is directly contrary to those policies.
1. Napster's Invocation of Section 1008 Upsets the Quid Pro Quo
That
Underlies the Act
The legislative history of the AHRA makes clear that the Act was
intended by Congress to embody the compromise agreement reached in
1991 between the music industry on the one hand and the consumer
electronics industry and consumer groups on the other. See, e.g.,
Senate Report at 34 ("the competing parties have, through
negotiation and compromise, reached an agreement which all parties
involved feel is equitable," and the legislation "reflects this
agreement"); House Report at 13, reprinted in 1992 USCCAN at 3583
(the Act "preserves the essentials of the agreement").
As explained above, the compromise underlying the Act involves a
basic quid pro quo. In exchange for accepting the marketing of
digital audio recording technology and the use of such technology
for noncommercial home taping, the music industry receives
financial compensation (through the Act's royalty system) and
protection against serial copying. This quid pro quo was central to
the agreement and the legislation that embodies it. See, e.g.,
Senate Report at 30 (summarizing the purpose and basic elements of
the legislation).
Construing Section 1008 to protect Napster would mean repudiating,
rather than preserving, the quid pro quo underlying the Act. On the
one hand, Napster would be permitted to facilitate the copying and
distribution of copyrighted sound recordings on a scale far
surpassing the "home taping" that Congress foresaw when it enacted
the AHRA. On the other hand, the products employed by Napster and
its users - computers and their hard drives -- are not subject to
royalty payments (by Napster or anyone else) and are not required
to be equipped with anti-serial copying circuitry, because the
royalty and serial copying provisions of the Act apply only to
"digital audio recording devices" and "digital audio recording
media," and as shown above, those terms exclude computers and hard
drives. 17 U.S.C. =A7=A7 1002(a), 1003(a), 1004; see p. 15 supra.
As a result, the music industry would bear the burdens of the
statute without receiving the corresponding benefits.
The legislative history makes clear that the Act's exclusion of
computers and hard drives was the product of a deliberate choice by
Congress. See, e.g., Senate Report at 48 ("a personal computer
whose recording function is designed and marketed primarily for the
recording of data and computer programs * * * would [not] qualify
as a 'digital audio recording device'"). In invoking Section 1008,
Napster is inviting this Court to countermand that legislative
choice, and to do so in a way that undoes the reciprocal nature of
the Act's digital recording provisions. That invitation should be
declined.
2. Section 1008 Was Not Intended To Immunize All Consumer Copying
of
Musical Recordings
Section 1008 identifies with precision the consumer activity that
Congress meant to shelter from copyright infringement suits: "the
noncommercial use by a consumer of such a device or medium for
making digital musical recordings or analog musical recordings." 17
U.S.C. =A7 1008. Despite the precision of this language, Napster
asserts that Congress actually intended to immunize "all
noncommercial consumer copying of music in digital or analog form"
(Napster Brief at 20), whether or not the copying comes within the
terms of Section 1008. But Napster has identified nothing in the
limited legislative history of Section 1008 that supports this
argument or overcomes the explicit language of the statute.
The following passage from the House Report on the Act is
representative of the legislative history regarding Section 1008:
Section 1008 covers one of the critical components of the
legislation:
exemptions from liability for suit under title 17 for home
taping of copyrighted musical works and sound recordings, and
for contributory infringement actions under title 17 against
manufacturers, importers, and distributors of digital and
analog recording devices and recording media. In the case of
home taping, the exemption protects all noncommercial copying
by consumers of digital and analog musical recordings.
Manufacturers, importers, and distributors of digital and
analog recording devices and media have a complete exemption
from copyright infringement claims based on the manufacture,
importation, or distribution of such devices.
House Report at 24, reprinted in 1992 USCCAN at 3594 (emphasis
added).
The highlighted references to "home taping" suggest, not
surprisingly, that Congress meant to address the problem that gave
rise to the AHRA - the introduction and use of DAT tape decks and
similar digital taping technology (see pp. 3-5 supra). There is no
indication that Congress also meant to cover other kinds of devices
and media that fall outside the terms of Section 1008. To the
contrary, the legislative history reiterates the message conveyed
by the language of the statute itself: Congress meant to "extend[]
protection to users of such audio recording devices and media by
prohibiting copyright infringement actions based on the use of such
devices and media" to make musical recordings. Senate Report at 51
(emphasis added). In short, the legislative history confirms that
Congress meant what it said in Section 1008 - and what Congress
said cannot be reconciled with what Napster is seeking.
3. The Legislative History of Statutes Other Than the AHRA is
Irrelevant
In construing the scope of Section 1008, Napster attempts to rely
on the legislative history of two statutes other than the AHRA -
the Record Rental Amendment Act of 1984 and the Computer Software
Rental Amendment Act of 1990. See Napster Brief at 23-24. Napster
argues that Congress's treatment of "commercial" lending of
phonorecords and computer software under those two statutes is
consistent with Napster's reading of Section 1008. The short answer
is that this case involves the meaning of the AHRA, not the meaning
of other statutes. Napster's invocation of Section 1008 cannot be
sustained on the basis of Section 1008's own language and
legislative history; a fortiori, it cannot be sustained by resort
to the language and legislative history of unrelated statutes. The
Record Rental Amendment Act and the Computer Software Rental
Amendment Act were both enacted prior to the AHRA, and they address
entirely different subjects. Neither their language nor their
legislative history purports to address the meaning of Section 1008
in any way.
C. Diamond Multimedia Does Not Resolve the AHRA Immunity Question
At
Issue in This Case
Napster suggests that this Court's decision in Diamond Multimedia
confirms Napster's reading of Section 1008. It does not. The
meaning and applicability of Section 1008 were not at issue in
Diamond Multimedia, and nothing that the Court decided in Diamond
Multimedia in any way requires the Court to accept Napster's
Section 1008 defense in this case.
Diamond Multimedia
involved a suit under the AHRA by the recording industry against
the manufacturer of the Rio portable music player, a "Walkman-like"
device that plays MP3 music files. The recording industry claimed
that the Rio player is a "digital audio recording device" and
therefore is subject to the Act's royalty and serial copying
provisions. Based on that claim, the recording industry sought to
enjoin the manufacture and distribution of the Rio player and to
compel Rio's manufacturer (Diamond) to make royalty payments under
the Act. This Court rejected the industry claim, holding that the
Rio player does not come within the Act's definition of a "digital
audio recording device" and therefore is not subject to the Act's
royalty and serial copying requirements. 180 F.3d at 1075-1081.
Diamond Multimedia
was not an action for copyright infringement. Because Section 1008
of the AHRA applies only to "action[s] * * * under this title
alleging infringement of copyright," it was facially irrelevant to
Diamond's liability, and Diamond never invoked Section 1008 as a
defense. Accordingly, the Court was not called on to decide whether
Section 1008 protected Diamond itself, much less whether or how
Section 1008 may protect defendants in other cases that (unlike
Diamond Multimedia) involve claims of copyright infringement.
Napster relies on a single passage from the Court's opinion in
Diamond Multimedia:
As the Senate Report explains, "[t]he purpose of [the Act] is to
ensure the right of consumers to make analog or digital audio
recordings of copyrighted music for their private,
noncommercial use." S. Rep. 102-294, at *86 (emphasis added).
The Act does so through its home taping exemption, see 17
U.S.C. =A7 1008, which "protects all noncommercial copying by
consumers of digital and analog musical recordings," H.R. Rep.
102-873(I), at *59.
180 F.3d at 1079 (emphasis in original).
To the extent that this passage speaks to the meaning of Section
1008, it is no more than dictum, since Section 1008 was not at
issue in the case. In any event, nothing in the passage is in any
way inconsistent with the proposition that Section 1008 means what
it says. The passage merely quotes excerpts from the House and
Senate Reports regarding the purpose of the Act in general and
Section 1008 in particular. As shown above, when the legislative
history is considered in its entirety, it directly supports, rather
than refutes, the conclusion that Section 1008 does not protect
Napster or its users. Accordingly, nothing in Diamond Multimedia
provides refuge for Napster in this case.
CONCLUSION
For the foregoing reasons, the district court's holding that
Section 1008 of the Audio Home Recording Act does not excuse
Napster from liability is correct and should be affirmed.
Respectfully submitted,
DAVID O. CARSON DAVID W. OGDEN
General Counsel Assistant Attorney General
J. KENT DUNLAP MARK B. STERN
SCOTT R. McINTOSH
United States Copyright Office Attorneys, Appellate Staff
Library of Congress
101 Independence Ave. S.E. Civil Division, Department of Justice
Washington, D.C. 20540 601 D Street N.W., Room 9550
Washington, D.C. 20520
ALBIN F. DROST
Acting General Counsel Counsel for the United States
JUSTIN HUGHES
United States Patent and Trademark Office
P.O. Box 15667
Arlington, VA 22215
Of Counsel
September 8, 2000
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 29(d)and Ninth Circuit Rule 32-1, I
certify that the attached amicus brief is proportionately spaced,
has a typeface of 14 points or more and contains 7000 words or
less.
_________________________
Scott R. McIntosh
CERTIFICATE OF SERVICE
I certify that on September 8, 2000, I filed and served the
foregoing BRIEF FOR THE UNITED STATES AS AMICUS CURIAE by causing
an original and 15 copies to be filed with the Clerk of the Court
by overnight mail and by causing copies to be served on the
following counsel by overnight mail and (where indicated) by fax:
Carey R. Ramos
Aidan Synnott
Michael Keats
Paul Weiss Rifkind Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019-6064
(212) 373-3000
(OVERNIGHT MAIL AND FAX)
Russell J. Frackman
Jeffrey D. Goldman
George M. Borkowski
Drew E. Breuder
Mitchell Silberberg & Knupp
11377 W Olympic Blvd
Los Angeles, CA 90064
(310) 312-2000
(OVERNIGHT MAIL AND FAX)
William M. Hart
Eric J. German
Frank P. Schibilia
Carla M. Miller
Hank L. Goldsmith
Leon P. Gold
Lawrence L. Weinstein
Proskauer Rose LLP
1585 Broadway
New York, NY 10036
(212) 969-3000
Hadrian R. Katz
(202) 942-5000
Arnold & Porter
555 Twelfth Street, NW
Washington, DC 20004
Steven B. Fabrizio
1330 Connecticut Avenue, N.W.
Suite 300
Washington, DC 20036
202-775-0101
Lisa M. Arent
Melinda M. Morton
Michael A. Brille
Samuel A. Kaplan
William Jackson
Seth A. Goldberg
Fenwick & West LLP
Two Palo Alto Sq Ste 800
Palo Alto, CA 94306
650-494-0600
(BY OVERNIGHT MAIL AND FAX)
Laurence F. Pulgram
Kathryn J. Fritz
Fenwick & West LLP
275 Battery Street
15th Floor
San Francisco, CA 94111
415-875-2300
(BY OVERNIGHT MAIL AND FAX)
David Boies
Boies Schiller & Flexner LLP
80 Business Park Drive
Suite 110
Armonk, NY 10504
(914) 273-9800
(BY OVERNIGHT MAIL AND FAX)
Albert P. Bedecarre
Quinn Emanuel Urquhart Oliver &
Hedges, LLP
2479 East Bayshore Road
Suite 820
Palo Alto, CA 94303
650-494-3900
Hannah Bentley
394 Scenic Avenue
San Anselmo, CA 94960
_________________________
Scott R. McIntosh
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