Napster Leaps To Its Own Defense Music & MP37/5/2000; 8:11:14 AM "Laying out a defense that sets the stage for a legal showdown at the end of the year, attorneys representing Napster responded Monday to the recording industry's request that the song-swap service be immediately shut down."A few comments:'"As long as the consumer is engaged in non-commercial activity, that is something that the Audio Home Recording Act immunizes," Boies says.' ... In response, the RIAA argues that Napster is disqualified from such a defense because it has built a business around the sharing of its users.'RIAA's response will probably convince the court... but in the long term, they miss a bigger problem with the whole argument that may come back to bite them. It's not Napster-the-company doing the sharing. If it's Napster-the-company's fault, it's not the user's fault (at least, I've haven't heard anybody trying to split the blame, not even RIAA). In that case, for those sharing MP3's with Gnutella... it's nobody's fault (read: responsibility). Napster-the-software-like stuff happens with the only central authority being "the Internet". RIAA really should try for saddling Napster users with part of the blame, rather then seeming to admit the point that users are engaged in non-commercial use of the system.'"If you make something that has unlawful and lawful [in this case, sharing public-domain MP3's] uses, you don't want to ban it," Boies argues. "The courts have a strong reluctance to interfere in a new technology."'Apparently the record companies have no comment on this one. It's pretty powerful. Maybe I should MP3 some more of my work and share it on Napster... give them some perfectly legal MP3's to point at.The final argument in stunning in scope:'The RIAA represents five companies that control 85 percent of recorded music sales in the United States. ... "This is a new technology that threatens the control of a dominant trade association," Boies says. "If you use copyrights to achieve an anti-competitive purpose, you lose the right to enforce your copyrights."'Wow! I'd like to see that one accepted by the courts! RIAA responds by saying that they are not a plaintiff in the case, but still, trying to strip copyright protection from the vast majority of popular music in existance is certainly a bold move!Update: David Boies court brief. Note: It's not the dense legalese you might be expecting, it's actually quite readable. In fact, I'd highly recommend you do so.