Napster's lawyer turns table on RIAA

by Robert Menta 7/21/00

When Napster hired David Boies, they knew they were in for the long haul against the RIAA and got the best. So how much better can you get than the man who slew Microsoft?

Not much and we'll tell you this, he's already paying dividends.

First the setup, Boise and his staff contend that downloading and sharing music files over the Internet is perfectly legal and violates no know copyright law.


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Next he makes a stunning announcement that may turn the table on this case by putting the recording industry on trial.

Boies leveled charges that the record industry has abused its limited monopolies. "The record companies have created a copyright pool that dominates an industry," Boies says, and have used that power to "disable the competition."

Now comes the kicker. If Boies can prove this, under an obscure provision of antitrust law the industry can be stripped of its ability to sue to protect its copyrights.

Now do you see why an antitrust lawyer was brought in to argue a copyright case?

The record companies have dismissed this issue publicly, but it has to give them pause. The real reason the labels are suing is not to protect the rights of their artists, but to squash a budding industry so they can step in to take over. A perfect example of this is Sony's announcement Thursday of their new product called Digital Locker.

Digital Locker is a clone of the My.MP3.com CD music stream service that they successfully sued earlier this year. My.MP3.com is presently shut down, waiting to negotiate with three remaining labels, including Sony, to secure the rights to open. Needless to say, with Sony now a competitor, there is no need for the company to hurry and grant MP3.com's copyright requests.

Essentially, Sony put that section of MP3.com's business out of business and is now taking over the turf.

In practice, Sony may have just given evidence - an Internet era example mind you - which illustrate Boies' point. This is not the only thing the Napster lawyers have to work with in their favor. After all, what is the RIAA, but the pit bull of the record conglomerates? And how about the great price fixing collusion that the government finally put to a stop this year. All in all, examples of oligopoly acting like a monopoly.

Remember Boies' charge "disable the competition". Senator Oren Hatch warned the record industry only last week in the Napster hearings about their aggressive use of the courts ensnare e-music with potentially hundreds of lawsuits. This is legal fodder for a man who took on Bill gates and won and ammunition is the last thing you want to give this guy.

If he pulls this off, the record industries game plan of sue and conquer could be a backfire of homeric proportions, one that will set precedents for the movie industry as well. But as Christopher Byron wrote in his excellent article on MP3 and the music industry "Terror in Tune-Town: Music Giants Flail Before Download Upstarts":

What’s at issue in this case is whether the people in collective control of the American infotainment industry will continue to wallow in the King Farouk lifestyle to which their oligopolistic control over the media’s distribution systems have accustomed them. What they face, thanks to the Internet, is a future about as appealing, over the long haul, as that enjoyed by salaried physicians in this era of H.M.O.’s and managed health care–and the "music over the Internet" fight is where these latter-day Romanovs have chosen to make their stand against that ultimate day of reckoning.

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