Napster Suffers Likely Setback In Appeals Court

The popular music-sharing Internet service Napster received a heavy blow to its struggle to stay alive yesterday, as a court ruling indicated the service is likely to be shut down pending a final ruling on the matter.

The pre-trial injunction requiring Napster to shut down--issued last July by the District Court of Northern California and then stayed by the Ninth Circuit Court of Appeals in August--was effectively sent back to the district court yesterday for modification.

Although Napster remains accessible for the moment, when the district court rewords its decision the service will be unavailable--only reopening if Napster should emerge victorious from its final trial.

The three-judge appeals court panel that delivered yesterday's ruling explained that the original injunction expected too much of Napster.

The opinion stated that although it is Napster's responsibility to police its system to the best of its ability, the burden is on the plaintiffs to notify Napsters of copyrighted works on its system.

The panel also advised the district court to take into account the difficulties facing Napster in gaining access to users' MP3 files, given the fact that most files are user-named.

However, the panel made it very clear that Napster users infringe on copyrights, and that "Napster materially contributes to the infringing activity."

In a statement released yesterday, Napster CEO Hank Barry acknowledged that the service could be shut down before trial.

"While we respect the Court's decision, we believe, contrary to the Court's ruling today, that Napster users are not copyright infringers and we will pursue every legal avenue to keep Napster operating," he said. "We have been saying all along that we seek an industry-supported solution that makes payments to artists, songwriters and other rightsholders while preserving the Napster file-sharing community experience."

Napster attorney David Boies issued a statement saying Napster will appeal yesterday's decision.

Those at Napster are not the only ones disappointed by yesterday's decision. Many Harvard students who use Napster were upset by the prospect of losing access to the music-sharing database.

"I'm definitely going to miss it when it's gone," Phyllis G. Maloney '04 said.

John E. Friberg '02 said he felt the ruling is in some ways opposed to the concept of freedom of speech.

"Napster is a good thing," he said. "I think the college community will be hurt if it's forced to shut down."

Those in the recording industry, on the other hand, are viewing the decision as only the beginning of righting the wrongs created by Napster.

"A business model built on infringement is not only morally and legally wrong, but it is also a threat to the development of the legitimate on-line music market," said Hilary Rosen, CEO of the Recording Industry Association of America (RIAA), in a statement. RIAA is the trade group that represents the U.S. recording industry organization.

"The Court's decisive and unanimous ruling today is a victory for all creators. The Ninth Circuit Court affirmed our legal position on every point," Rosen said.

Despite the court's ruling to the contrary, Napster is still maintaining that its MP3 file exchange is a type of "non-commercial use" allowed by the Audio Home Recording Act.

The court declined to state an opinion on the applicability of Napster's argument that it is an "Internet service provider," a type of organization that is shielded from copyright infringement suits by statutes of the Digital Millennium Copyright Act.

"We instead recognize that this issue will be more fully developed at trial," the opinion read.

The court also justified the injunction by anticipating that users would rush to download songs before trial if the service were to remain open.

Indeed, according to Webnoize.com statistics cited by CNN, an estimated 250 million songs were downloaded through Napster this weekend alone.

Harvard students contributed to the Napster frenzy, seizing what they feared would be their last opportunity to take advantage of the free program.

"I was downloading a lot of songs this weekend, and the server was pretty slow," Friberg said.

With the recent publicity and seemingly imminent shutdown, traffic is likely to increase.

--Staff writer Kate L. Rakoczy can be reached at rakoczy@fas.harvard.edu.