Metropolitan News-Enterprise


Tuesday, March 26, 2002


Page 3


Ninth Circuit Upholds Order Shutting Down Napster File-Swapping Service


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday affirmed a district judge’s order requiring Napster Inc. to shut down its free online file-swapping service.

Chief U.S. District Judge Marilyn Hall Patel of the Northern District of California ruled in July that the company, which is based in Redwood City, could not keep its free service online until it has removed all copyrighted music.

The Ninth Circuit had stayed Patel’s order shortly after it was issued. But Napster did not resume the free service, focusing instead on working with copyright holders to create a paid service.

Patel issued the shutdown order, sought by more than 20 record companies as well as by individual artists, after a court hearing in which Napster said it was about to restart its free service following a one-week hiatus to retool its song-screening software. The retooling would block more than 99 percent of all infringing song files, Napster claimed, but the judge said it needed to block 100 percent of unauthorized copyrighted songs or stay offline.

Senior Judge Robert R. Beezer, writing for the Ninth Circuit, called the order “a proper exercise of the district court’s power.”

Beezer noted that users of the service were still able to upload files during the time that Napster voluntarily disabled its service while setting up the filtering mechanism that was supposed to block exchange of files containing copyrighted material.

Requiring Napster to “do everything feasible to block files from its system which contained…copyrighted works” whose owners have given notice to the company, he said, did not constitute an abuse of discretion.

With the preliminary injunction in place, Patel is continuing to hear the plaintiffs’ claim for damages for infringement, based on claims that Napster violated their property rights by allowing millions of users to download and swap protected music for free.

Attorneys on appeal included Russell J. Frackman of Mitchell Silberberg & Knupp and Carey R. Ramos of New York’s Paul Weiss Rifkind Wharton & Garrison for the plaintiffs and Laurence F. Pulgram of San Francisco’s Fenwich & West and Steven Holtzman of the Armonk, N.Y. firm of Boies Schiller & Flexner for Napster.

Attorneys from O’Melveny & Myers filed an amicus brief on behalf of a number of organizations considered with intellectual property rights, including the Motion Picture Association of America, ASCAP, the Association of American Publishers, the Jazz Journalists Association, and the Office of the Commissioner of Baseball.

The case is A&M Records Inc. v. Napster, 01-15998.


Copyright 2002, Metropolitan News Company