Throw out the injunction, Napster tells court

Napster lawyers this week presented the Appeals Court with a strongly worded

petition requesting that the injunction against the company issued last month by

a lower court, be overturned. Napster's team of lawyers, headed by star attorney

David Boies, told the 3-member Appeals Court that US District Judge Marilyn

Patel had relied on ambiguous evidence and failed to understand how Napster's

technology works when she ordered the company to shut down its popular Web site

that helps consumers download copyrighted music stored in the disk drives of

other Napster members.

Napster bases its Appeals Court defense on the same argument it used in the

lower court. Napster believes that under the Audio Home Recording Act of 1992,

the consumers' right to copy digital and analog music recording for

non-commercial uses is protected. As such, the activity of its members is

perfectly legal.

Patel had rejected that argument and sided with the recording industry's

argument that Napster was willfully participating in massive illegal copying of

copyrighted material. If successful, the Napster case will set a huge legal

precedent for how book publishers and film studios can protect their material on

the Internet. Napster chief executive Hank Barry said the company has made

efforts to settle the lawsuit, including a proposal to pay artists. But no

proposals have been accepted by the recording industry.

Legal analysts said Napster's chances of getting the Appeals Court to

overturn the Patel ruling remain small. "The real challenge Napster has is

that Patel did a great job of finding facts that will be extremely difficult for

Napster to get around,'' said intellectual property attorney Mark Radcliffe. The

one thing Napster has going for it is that the 9th Circuit Court Appeals has a

tendency to closely and carefully examine copyright issues involving new

technologies.