Napster Appeals Shutdown Order

Court will hear final arguments over music file-sharing case in October.

Laura Rohde, IDG News Service

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Attorneys for the music sharing site filed their final brief with the U.S. Court of Appeals for the Ninth Circuit in San Francisco before oral arguments begin on October 2. Napster is being sued by the Recording Industry Association of America, representing the major music labels, which allege copyright infringement. (See "Studios Sue MP3 Start-Up Napster.")

The United States enacted the Audio Home Recording Act in 1992. It assesses a 2 percent surcharge on sales of certain recorders, tapes, and cartridges to fund a royalty pool intended to compensate artists, music labels, and publishers for sales lost to piracy.

In its brief, Napster responds to the RIAA's September 11 request to the federal appeals court to uphold a ruling that would effectively shut down Napster's service. (See "Napster Appeals Ruling.")

Restrictions Too Severe, Napster Says

According to Napster, RIAA "disregarded key language in the AHRA and substituted words that better suited their purpose" when it submitted its appeal. The RIAA argued that U.S. District Court Judge Marilyn Hall Patel was correct when she ruled on July 26 that Napster's file-swapping service contributes to copyright infringement on a massive scale and issued a preliminary injunction against the company. (See "Judge in Napster Case Finds in Favor of Music Companies.")

The injunction required Napster to stop its users from trading copyrighted songs using its service. Napster said the requirement was technically impossible and would effectively shut the service down.

It was the U.S. Court of Appeals for the Ninth Circuit that, in turn, issued Napster a requested reprieve by delaying the injunction, pending the outcome of Napster's appeal. (See "Napster Wins Reprieve.")

"The recording industry is attempting, in this case, to try to maintain control over music distribution," says Napster's lawyer, David Boies, in a statement issued Wednesday. "By repeatedly refusing Napster's offers of a reasonable license and opposing a compulsory license, they have demonstrated that they are not seeking to be appropriately compensated, but rather to kill or control a technology they view as competition."

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