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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