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Appeals Court Rules Against Napster

The 9th U.S. Circuit Court of Appeals sided yesterday with the recording industry in its copyright battle with Napster Inc.

The three judges unanimously upheld the Recording Industry Association of America’s arguments by confirming that a preliminary injunction against Napster’s free digital music file sharing service is “not only warranted but required.”

Although the appeals court agreed with most of the arguments in Federal District Judge Marilyn Hall Patel’s original injunction last July, it said the recording industry, not Napster, was responsible for identifying music protected by copyright.

A new injunction will take effect once Patel alters the original order.

“There is no threat of immediate shutdown,” Napster attorney David Boies said.

Publicity surrounding the decision actually increased traffic to Napster's site. Normally, an average of 6,000 people share their digital music libraries daily over Napster’s 100 servers. On Monday, there were nearly 11,000 users and more than 2 million files on each server.

Napster CEO Hank Barry said he was disappointed with the ruling.

“Under this decision Napster could be shut down — even before a trial on the merits,” he said. According to Barry, the decision was based on an incomplete collection of facts. “We look forward to getting more facts into the record,” he said.

Officials would not set a time limit on when the next injunction would occur or say exactly what will happen when it does.

Boies used terms such as “not tomorrow,” “it’s not going to be months,” and “expeditiously” when asked when he felt the next injunction would be handed down.

Separately, Internet publication Inside reported Sunday that the RIAA has appointed former Republican presidential candidate Bob Dole as a strategic adviser to the legal and lobbying team working on the Napster case. This follows the appointment of Manus Cooney, former Senate Judiciary Committee chief counsel and staff director, as Napster's vice president for corporate and policy development.

Napster initially was ordered to terminate its service when the RIAA filed copyright infringement charges against it last year, but Napster's lawyers were able to delay a final decision until yesterday.

It is unclear what would happen if the court sides with the recording industry in the overall lawsuit.

Napster only provides the software that allows users to share MP3 files with each other. It is not clear whether the company has the power to terminate usage of the service. Calls to Napster officials were not returned.

Even if Napster can end the transfer of all RIAA-owned copyrights, copyright scofflaws will be able to choose from hundreds of other file-swapping software platforms that have sprung up in the past year.

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