Napster's Fate Remains Undecided

SAN FRANCISCO -- There's no word yet on whether music-sharing site Napster must change its tune.

A U.S. federal appeals court on Monday heard arguments from both sides but did not rule on whether to continue an injunction barring the site from operating.

The three-judge panel of the Ninth Circuit Court of Appeals here is expected to rule soon on whether Napster must shut down. In July, Judge Marilyn Hall Patel issued the injunction, ordering that Napster remove copyrighted material from music labels represented by the Recording Industry Association of America (RIAA), the plaintiffs in the lawsuit.

Napster quickly appealed Patel's ruling and wound up before the appellate court on Monday. The case will go to trial later this year.

The RIAA and record labels it represents contend that Napster is violating copyrights and engaging in piracy.

"We don't think it's piracy because we think it is lawful [use of material]," Napster attorney David Boies argued before the appellate court on Monday.

Further, Napster lawyers contend that some 15 percent of the songs on Napster are not copyrighted, and 20,000 artists have given the Web site permission to use their music. The peer-to-peer technology offered by Napster is important, and it should be the business of the U.S. Congress to provide legislation regarding its use, not the job of the courts, attorneys argued.

But the issue isn't about technology, said Russell Frackman, an attorney for plaintiff A&M Records. "We're talking about a business and a business plan," he said, adding that Napster was created with the intent of sharing copyrighted material.