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Recording Artists File Brief Supporting Napster

A group of recording stars led by Don Henley on Tuesday said they recently filed a brief in a San Francisco federal court that may give song-swap service Napster a shot in the arm in its ongoing copyright infringement battle with the recording industry.

The artists contended in their brief filed on Nov. 7 that the big recording labels may not indefinitely own some of the sound recording copyrights they are suing over in the landmark suit against Napster, said Jay Rosenthal, a lawyer for the Recording Artists Coalition (RAC).

The record giants in October requested summary judgement on the issue of liability, which would leave as the only trial matter the amount of damages and nature of an injunction against Napster.

Napster, which faces potentially billions of dollars in damages due to the lawsuit, has opposed the request and argued for a full trial to determine its liability.

Napster’s lawyer Jonathan Schwartz said that during a recent hearing, U.S. District Court Judge Marilyn Hall Patel took seriously Napster’s argument that summary judgement is premature when the labels haven’t provided conclusive evidence they actually own the works they claim were infringed.

The once popular service has been idle since July due to technical glitches it confronted while complying with a preliminary injunction barring it from offering copyrighted songs on its service.

Henley and several other artists have said they are concerned by the labels’ classification of thousands of recordings in the case as “works made for hire.”


Under existing law, a “work for hire” is considered the property of the employer – the record company – and not the artist, preventing artists from reclaiming their copyrights 35 years after recordings are made.

The industry has lobbied hard to classify songs as works for hire so that once a recording is made, the copyright essentially belongs to the label and the firm needs only to pay a flat fee to artists for their work, analysts said.

“We’re contending that the labels should not use the copyright registrations claiming the sound recordings as ‘works for hire’ to prove ownership in this case,” said Jay Rosental, a lawyer for RAC.

The vast majority of copyright registrations submitted to the court by the record company plaintiffs claim authorship and ownership of the sound recordings as “works for hire.”

“The work for hire issue is central to Napster’s opposition to the record labels’ summary judgement motion,” said Schwartz, Napster’s lawyer, on Tuesday.

The big labels, including AOL Time Warner Inc.’s Warner Music, EMI Group Plc and Bertelsmann AG’s BMG, Vivendi Universal’s Universal Music and Sony Music, first sued Napster in December 1999.

The Recording Industry Association of America (RIAA) was surprised by the filing. “Their decision to file is as baffling as it is irrelevant,” said Jano Cabrera, a spokesman for the RIAA. “It’s irrelevant because there can be no doubt that the record companies own or control the copyrights at issue here. “This is something that artists don’t contend,” said Cabrera.

“It’s baffling because artists have as much at stake in protecting copyrights online as do record companies,” he said.

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