H-Net* Appeals court grants Napster reprieve

[kliner]

Appeals court grants Napster reprieve

SAN FRANCISCO - The music can keep playing, for a while at least.

The 9th U.S. Circuit Court of Appeals issued a stay Friday against a preliminary injunction that would have required that the popular, music-sharing Internet service Napster shut by midnight Friday (3 a.m. EDT).

Napster is an Internet site that allows users to upload and download recorded music. It claims 20 million users and hundreds of millions of downloads this year. The recording industry and artists have sued Napster claiming the service threatens the financial integrity of their business

A U.S. District Court in San Francisco had issued a preliminary injunction Wednesday against Napster, ordering it to to stop offering access to digital versions of songs whose copyrights are owned by the major labels.

Following Wednesday's order, Napster interim CEO Hank Barry gave a statement via Web cast on Napster's Web site.

"Although we strongly and firmly disagree with the judge's decision, we respect and understand the basis for it and we plan to comply," Barry said Wednesday on the Napster Web site. "We'll fight this in a variety of ways to keep the Napster community growing and strong."

In its response filed with the 9th U.S. Circuit Court of Appeals, the recording industry said Napster's claim that the court order would put it out of business are untrue and legally irrelevant.

"Napster's present attempt to delay this matter fits its pattern in this litigation. Its motion rests on mischaracterizations of both the evidentiary record and the District Court's ruling, and on the fundamental fallacy that the injunction will cause Napster irreperable injury," the response said.

"Napster's claim that the injunction would put it out of business is both untrue and legally irrelevant. The law does not permit a company deliberately built on copyright infringement to complain that its business will be devastated if it is forced to stop trafficking in pirated music."

In issuing the injunction, U.S. District Judge Marilyn Patel said Napster "is enjoined from causing, assisting, facilitating, copying, or otherwise distributing all copyrighted songs or musical compositions."

"If you design a site designed to enable infringement, you can't stand by and claim you don't know what's going on," Patel said in response to Napster's arguments in court.

Patel noted that 70 million people are expected to be using Napster by year's end and said "what lures them is the infringing use."

Shortly after Patel's decision, users flooded to the Napster Web site in a race to download free music before the court order goes into effect.

Industry: Napster an illegal online bazaar

The Recording Industry Association of America sued Napster in December, accusing the San Mateo, California-based company of encouraging an unrestrained, illegal, online bazaar. Time Warner, parent company of CNN and CNN.com, is a member of RIAA.
 

Judge Patel handed down strong words saying, "piracy" was in the minds of Napster's founder

Napster argued that personal copying of music is protected by federal law.

The Napster site allows computer users to upload and download prerecorded music. It claims 20 million users and hundreds of millions of downloads so far this year.

Napster works as a clearinghouse -- pointing users to computers where songs in the popular MP3 format can be downloaded. It and some of the other music-sharing services provide online directories to songs through central computers. Others use distributed networks, in which each logged-on user acts as a server. That enables even more connections than directories with a central server.

The more than 100 central computers used by Napster made the company a clear target for the lawsuit. However, the injunction is likely to have no effect on Gnutella and other decentralized technologies in which song files are traded directly among a constantly changing collection of computer users.
 

Napster founder Shawn Fanning vowed in a Web cast that the fight for the right to share music over the internet was not over

Napster's "MusicShare" software, Scour Exchange, iMesh and CuteMX update directories to songs via central servers. Gnutella and Freenet are programs that used the distributed system.

Napster was designed to search only for shared MP3 files. Scour Exchange, iMesh and CuteMX can be used to search for audio, video and images. Gnutella and Freenet are "file agnostic" and can be used to share all file types.

Another free program, called Wrapster, allows any file to be disguised as an MP3 file and transmitted via Napster.

All these programs are available on the Internet and are free to download and use.

The case is A&M Records v. Napster.