PublishedAugust 25, 2000

CCIA Files Friend of Court Briefs in Napster Case

Washington, DC- Today, the Computer & Communications Industry Association (CCIA) joined with others in industry and the technology community in filing two amicus curiae briefs in the Napster v. A&M Records case before the Federal Ninth Circuit Court of Appeals. While not taking a position on Napster’s potential liability as a contributory or vicarious copyright infringer, the briefs argue that the lower District Court misapplied and misinterpreted several key provisions of Federal copyright law and Supreme Court precedent.

The first brief, filed jointly with several other industry representatives, argues that the lower court erred in three critical aspects: (1) the District Court mistakenly ruled that Section 512 of the Copyright Act does not protect contributory copyright infringers, when, in fact, it does; (2) the court reinterpreted the carefully balanced “actual knowledge and red flag” standard of knowledge for service providers’ liability under Section 512 to require merely that a service provider need only have “reason to know” of infringement by users; and (3) the lower court expanded the requirements of Section 512 to require service providers to establish a policy of termination of repeat infringers beyond termination of specifically identified user accounts.

“Section 512 was the subject of intense and difficult negotiations, in which we were deeply involved, during congressional consideration of the Digital Millennium Copyright Act (DMCA),” said CCIA President and CEO Ed Black. “But the District Court’s application of these carefully balanced standards ignores the plain language of the statute as well as the clear legislative intent of Congress. If allowed to stand, the Napster decision could seriously undermine the important protections conferred by Congress on service providers and impair the development of the Internet and related technology.”

The second amicus brief, filed jointly with the Consumer Electronics Association (CEA) and the Digital Future Coalition (DFC), focuses on errors in the court’s analysis and application of the standards for contributory and vicarious copyright infringement set forth in the seminal Sony v. Universal City Studios decision by the U.S. Supreme Court. The brief points out two fundamental errors in the court’s reasoning that would significantly expand copyright. First, the District Court substantially modified the “staple article of commerce doctrine” set forth in Sony by assuming that if a breakthrough technology is principally used for infringing copyrights, then no other use can be commercially significant. The court also gives inordinate weight to the initial and most popular actual uses of the Napster file sharing technology without considering later-developed or potential uses. The court’s other major error in its interpretation of Sony is its construction of a novel exception to the Sony doctrine in instances in which the provider of technology capable of infringing uses exercises some element of “continuing control” over the technology.

“We believe that the major purpose of copyright and other intellectual property laws is to spur innovation and creativity, and this was the essence of the Sony decision,” said Black. “If copyright laws serve to deter the development of breakthrough technologies with tremendous possible benefits to society and consumers, merely because some are using that technology improperly, we will never realize the full benefit of the amazing developments occurring throughout our country and the world. We are hopeful that the Ninth Circuit will recognize the errors in the District Court’s reasoning and send the case back for further consideration.”

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