Sue Zeidler
SAN FRANCISCO: Controversial song-swap company Napster Inc. seemed to strike
an upbeat chord in federal appeals court on Monday as a three-judge panel
decided to allow the popular service to continue, pending further deliberations.
The panel for the 9th Circuit Court of Appeals in San Francisco took no
immediate action on the request by the Recording Industry Association of America
(RIAA) to lift a stay on a ban on Napster, which enables the popular song
sharing service to remain in business pending a final decision.
"The judges seemed to need more information from the recording industry
and were more antagonistic to the RIAA. They don't really seem satisfied with
the status quo," said copyright expert and lawyer for Gordon &
Glickson, Leonard Rubin, who observed the proceedings.
Monday's hearing marked the latest clash between Napster, which has amassed
some 30 million users, and the RIAA, which represents the biggest recording
companies in the world.
The court battle has come to be viewed as the first big battle over
copyrights in cyberspace, and is expected to define how books, movies and music
are distributed on the Internet.
In July, US District Court Judge Marilyn Hall Patel found Napster guilty of
"wholesale" copyright infringement and ordered it to be shut down
pending a full trial. But the 9th Circuit granted a last-minute stay, saying it
needed more time to consider.
Judges appear more critical of recording industry
On Monday, the judges appeared to question some of Patel's earlier conclusions.
"Napster doesn't have any idea what's being transmitted," Judge Mary
Schroeder said in response to RIAA lawyer Russell Frackman's argument that
Napster should be held liable such as when a swap meet owner is held liable for
bootleg CDs sold at his market.
Napster, based in Redwood City, California, lets fans swap songs for free by
trading MP3 files. MP3 is a compression format that turns music on compact discs
into computer files. On Monday, research firm Webonize said 1.4 billion songs
were downloaded using Napster during September.
"I thought the judges on balance more critical of the recording industry
than Napster," said Rioport.com vice president and lawyer Ron Moore.
Napster has said the RIAA, representing Seagram Co. Ltd.'s Universal Music,
Bertelsmann AG's BMG, Sony Corp.'s Sony Music, Time Warner Inc.'s Warner Music
Group and EMI Group Plc, is trying to keep a chokehold on music distribution and
ignores the many legitimate uses the Napster software provides.
Furthermore, it says it is not responsible for its users' activities and also
argues that file-sharing among its users for the most part is noncommercial,
constituting fair use.
Napster lawyer David Boies, best known as the lead Justice Department
attorney in the Microsoft anti-trust case, cited a 1984 legal ruling validating
the use of video cassette recorders despite potential copyright infringement
uses.
After Judge Robert Beezer questioned some aspects of Napster's argument,
Frackman of the RIAA said, "I think you had it right..." but Beezer
quickly shot back, "I have some problems with you too," drawing
laughter in the courtroom.
Judge Schroeder also appeared to question the "fairness" of a music
industry, which promotes the sale of albums over singles. "I can no longer
go out and buy a 45 record. I have to buy an album," she said.
"Napster's users are getting songs."
Frackman responded by saying the recording industry was not objecting to the
technology or digital downloading of music or singles. "We're not talking
about technology. We're talking about a business model," built on
infringement, he said.
(C) Reuters Limited 2000.