Cisco makes fiber move

Napster is still on the air as a Federal Appeals Court granted the Silicon

Valley company’s request for a stay of injunction issued last week by a lower

court. The injunction would have forced the company to turn off its popular Web

site that assists consumers in exchanging music files, including copyrighted

material.

Two judges on the Ninth Circuit Court of Appeals granted Napster’s request

for an Appeal. The stay, however, is only temporary and simply gives both

parties time to file briefs with the Appeals Court in support of their position.

The full court will then determine whether to review the case or let the lower

court order stand. The court may also decide to hear the appeal but let the

injunction stand, in which case Napster will be forced to shut down while its

appeal makes its way through the courts.

Analysts said the Appeals Court move is an important first victory for

Napster. It is highly unusual for the Appeals Court to overturn a temporary

injunction. It shows that the Appeals Court is less convinced than Federal

District Court Judge Marilyn Patel that Napster is engaging in copyright

infringement.

Many argue that since Napster is providing a service, which is free of charge

and probably quite legal, it cannot be held liable for any unlawful distribution

of copyright material by other third parties using the service. Analysts also

credit the powerful legal skills of David Boies, who won the anti-trust lawsuit

against Microsoft, for obtaining such an unusual stay on the injunction.

The stay will give Napster time to prove that rather than hurting the music

industry, it is in fact helping sales of copyrighted material. A number of

surveys show Napster users buy more music CDs than similar non-Napster users.

And they attend more live performances on average as they are more easily

exposed to a group’s full repertoire.

To be sure, the huge amount of publicity surrounding the case has given a

huge boost to Napster’s popularity, as well as that of similar services. More

than one million people a day are currently visiting the Napster site, up from

150,000 a day earlier this year.