Napster Case Goes Back to Court

Napster and the recording industry are again set to face off, with a return visit on Friday to the court of U.S. District Judge Marilyn Hall Patel for a hearing that could lead her to rewrite an earlier ruling in the case.

The 9th Circuit of the U.S. Court of Appeals recently largely upheld an injunction Patel issued that prohibits Napster from operating its service on the grounds that the peer-to-peer system violates music copyrights. A three-member panel of the appellate court ruled that Napster was guilty of two types of copyright infringement, but considered the original injunction too broad, sending it back to Patel to be rewritten.

After the appellate decision, Napster asked that the full appeals court hear the case, and outlined in that petition arguments that might also be given Friday before Patel. The company proposed in that document that it pay compulsory royalties similar to those paid by radio stations as an alternative to shutting down the site with an injunction.

"This Court ... has repeatedly recognized that compulsory licenses are preferable where injunctions would prevent public access to new technologies or creative works," Napster's petition says. Napster argues that a compulsory license would be appropriate because users of the music-swapping service trade music for noncommercial purposes, and "an injunction would limit the availability of a dynamic technology that the panel found capable of substantial noninfringing uses."

Both sides have hired high-powered legal talent to argue their respective cases. The Recording Industry Association of America brought on board Marc Racicot, former governor of Montana and once an early favorite to be picked for attorney general in the Bush administration. The RIAA is the plaintiff in the case and represents record companies. Napster has David Boies, former U.S. Vice President Al Gore's attorney, who challenged the recent contested presidential election. Boies also worked for the U.S. Department of Justice in its antitrust case against Microsoft.

Friday's hearing is scheduled for 10 a.m. PST in Patel's courtroom in San Francisco. The Napster service continues to operate while the legal wrangling goes on.