By Robert Menta
Flashback almost 20 years ago. The second highest court in the land has ruled that VCR's violate US copyright law and are hence illegal. Sony has yet to take their case to the Supreme Court where they will finally win their case and have the lower court ruling reversed.
Now picture this, what if Federal Government - before the company had its day in the Supreme Court - filed legal arguments against Sony Corporation saying video taping is not protected under any key sections in the copyright law the company has cited in its defense.
That is what happened Friday to Napster inc. in a move that hint's of election year politics.
Government attorneys gave their support and influence behind U.S. District Judge Marilyn Patel's ruling, saying in their amicus brief that the Audio Home Recording Act (AHRA) did not apply to the file-trading application. The brief was filed to the 9th U.S. Circuit Court of Appeals.
What makes this brief suspicious is that twenty "friend-of-the-court" briefs from companies that Motion Picture Association of America President Jack Valenti called "the backbone of America's creative community", accompanied the government's support.
The Recording Industry Association of America, which is suing Napster, also was expected to file briefs by midnight Friday with the 9th U.S. Circuit Court of Appeals.
The heart of the argument applies to that Section 1008 of the AHRA that lawyers for Napster claim protects the file-trading network. This argument, was dismissed by judge Patel who's finding ruled that the AHRA applies only to physically manufactured products such as portable music players, and does not extend to software applications.
"Section 1008 was adopted to address a very different phenomenon - the non-commercial consumer use of digital audio recording devices such as DAT tape decks, to perform 'home taping' of musical works," the government wrote to the court in support of Patel's ruling. "Napster's efforts to bring itself within the ambit of Section 1008 flouts the terms of the statute."
It was the ruling of two 9th U.S. Circuit Court of Appeals judges that prevented Napster from being shut down last July 28th. In that ruling the court said "having raised substantial questions of first impression going to both the merits and the form of the injunction, the emergency motions for stay and to expedite the appeal are granted".
The point of these briefs is to influence the Court of Appeals to reconsider its position. These briefs are not all one sided. Several technology and hardware companies, including America Online (AOL) and Yahoo (YHOO), recently filed briefs urging the appeals court to reconsider Patel's interpretation of the recording act.
But for the government to step in and take sides carries significant weight. As the authors of that law, they can vouch for what the "spirit" of the law intended even if the exact wording of the law may imply broader definitions.
But as Wired hinted in its article "Bad News for Napster" the Clinton administration's support here for the entertainment conglomerates may be tied into the media's heavy financial support to the Democrats for this years presidential run of Al Gore and the NY senatorial bid of wife Hillary. This article included a link listing major media donors.
The list of donors include Recording Industry Association of America President and CEO Hillary Rosen, Universal Music Group President and COO Zachary Horowitz, Warner Brothers Records Vice Chairman David Altschul, and BMG Entertainment President and CEO Strauss Zelnick.
It may also be pointed out that all of the above donors are Jewish, a demographic group that the Democratic party has particularly targeted for support with the selection of Joseph Lieberman as Vice Presidential running mate for Al Gore.
The greatest density of Jewish voters in this country lie in New York state where Hillary Clinton is fighting her very close campaign. As of September 10th the NY Post showed Hillary with 73% of Jewish voters. Pundits feel she needs 60% to win the election over her competitor Rick Lazio.
Tapping into the most powerful and influential members of any ethnic or religious group is a long practice of both political parties. Of course one hand has to wash the other.
If Napster disappears from computer screens all over the world it may no longer be because of the straight legal merits of the case, but because it was sold down the river long before by politicians looking to grab a few votes.
If this is true, Napster will have transcended a not so simple case of copyright law into national and religious politics. Considering this company is not yet a year old, that is impressive…and damn scary.
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