Napster sued -- again -- by EMusic and Grammys

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ITworld.com –

BOSTON -- Napster Inc., the MP3-trading company already under heavy fire from the Recording Industry Association of America Inc. and its member record labels, is being sued yet again, this time by two new parties: EMusic Inc. and the producers of the Grammy Awards.

EMusic, a subscription-based music download company, alleges in a suit filed Wednesday that Napster is guilty of vicarious and contributory copyright infringement -- the same charges the RIAA has levied -- by allowing EMusic's licensed songs to be traded on its network. Going beyond the charges that the RIAA made, though, EMusic also alleges that Napster's reliance on these two types of copyright infringement to build its business constitutes unfair competition. EMusic is asking that Napster be enjoined from trading its licensed music, that EMusic be awarded any profits Napster has made from these songs, the maximum damages allowable under the law and attorney's fees.

In its brief, EMusic says that it is the exclusive licensee for digital downloads for songs that it offers on its site, and Napster allowing those songs to be traded on its network constitutes a violation of that license. EMusic has notified Napster of these infringements, but no action has been taken to stop them, according to its brief.

EMusic argues that Napster can and should stop its users from trading these files. Napster had previously argued that such a step was technologically impossible, but reversed course last week and took action on Monday to block tens of thousands of songs from its directory.

The National Academy of Recording Art and Sciences, the producer's of last month's Grammy Awards, also filed a separate suit due to performances from the program, notably rapper Eminem's duet with Elton John, appearing on Napster. The producers say that they had plans to release an album of performances from the broadcast but that the songs' availability on Napster has caused them to reevaluate their plans.

Both suits were filed in the Northern District Court of California, the same court which heard the RIAA suit.

A company is guilty of contributory copyright infringement when it facilitates the act of infringement, as Napster is charged with doing by providing its service. Vicarious infringement is the result of a company having the power to stop the infringement and failing to, as well as having a financial interest in the infringement.

The RIAA sued Napster in December 1999 for copyright infringement. The company has maneuvered through a series of court dates, remaining to stay open and operate freely. However, an injunction handed down Tuesday by U.S. District Court judge Marilyn Hall Patel forced Napster, in cooperation with the RIAA, to begin filtering songs on its network by next week.

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