The legal brouhaha over Napster has added yet another little twist, this time dividing Washington because of the latest “friends of the court” briefs filed 2 weeks ago by some powerful federal agencies.

When the Justice Department and US Copyright Office submitted their legal briefs with the 9th U.S. Circuit Court of Appeals last week, in support of the position the Recording Industry Association of America (RIAA) is taking on the Napster case, they angered at least one powerful congressman. Senator Orrin Hatch, who is the chairman of the Senate Judiciary Committee, sent a short letter to the court stating that the positions of the DOJ and Copyright Office do not represent the opinion of the full U.S. government. The Senator, along with the Judiciary Committee, help write copyright laws and thus his involvement here signals that Congress would rather be answering these tough questions instead of allowing the courts to decide the course of that is to be taken.

"Given the importance of the issues to be decided, I thought it important that the court be under no misapprehension that the (DOJ) brief necessarily expresses the view of Congress in this matter," Hatch wrote. "Indeed, Congress has recently held hearings into the matter and is engaged in ongoing deliberations about its merits as the events unfold in the emerging online music and entertainment market."

The letter by Senator Hatch does not carry the weight that an official legal “amicus,” or
”friend of the court brief” would, but is noted for the record nonetheless. On top of that, it is possible that it will undermine the credibility of DOJ and the Copyright Office, by signaling to the court that Congress should be making statements that speak for the government and not these agencies.

Just recently, the DOJ and Copyright Office wrote, in their “friend of the court” briefs, that if Napster was allowed to continue in it’s current incarnation then the users of the software would be allowed to engage in digital copying and public distribution of copyrighted material, something Congress had not envisioned when enacting the Digital Millennium Copyright Act. Of course there are a lot of things that Congress does not envision when enacting laws, therefore why should this time be any different from the norm?

Napster and the RIAA will next meet in court to battle on whether or not the appeals court should uphold the preliminary junction to shutdown Napster, sometime in the beginning of October.

Who ever would have thought that this whole Napster controversy would have the whole country up in arms?