In the battle between giants in the record industry and the Internet service industry, the ACLU said in legal papers, "the district court overlooked the effect of the court's actions on individual Internet users."

"Whenever speech is enjoined, it is a matter of constitutional import," said Ann Brick, a staff attorney with the ACLU of Northern California, which filed the brief which together with the national ACLU in A&M Records v. Napster.

"Although still in its infancy, the Internet has become a medium of unprecedented, interactive mass communication. The injunction in this case has the potential for affecting this vital new medium of communication and cannot be taken lightly," she said.

The ACLU brief said that in order to comply with the District Court's order, Napster would have to stop most of the music exchanges its users engage in, not just those exchanges that are covered by the music companies' copyright.

In effect, the ACLU said, the injunction denies Napster users the opportunity to share almost any music, regardless of whether the exchange would violate the record company's copyright. In doing so, the injunction suppresses more speech than necessary to protect the copyright interests of the music companies and thus is unconstitutionally overbroad.

The ACLU takes no position on the underlying issue of whether or not the Napster system violates the copyright laws.

"The court should not have issued an injunction without first holding an evidentiary hearing," said Chris Hansen, a senior staff attorney with the national ACLU.

"In a case like this one where the evidence is both voluminous and hotly contested, it is crucial that there be a forum where disputed facts and expert opinions can be fully explicated and tested," he added. "This is especially true when the court's decision has the potential to affect a host of other file-transfer technologies on the Internet."

The District Court granted the plaintiffs' motion for a preliminary injunction against Napster on July 26, 2000. On July 28th, the day the injunction was to go into effect, the Ninth Circuit issued a stay and ordered that the appeal proceed on an expedited basis, i.e., without an evidentiary hearing.

The ACLU brief was filed by Brick, and national ACLU attorneys Hansen and Ann Beeson.