FC: Clinton administration takes on Napster in court case
Declan McCullagh
declan at well.com
Fri Sep 8 16:16:42 PDT 2000
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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