APPEALS COURT FINDS NO SUPPORT FOR NAPSTER'S ARGUMENTS
Federal appeals court Mon. let stand lower court ruling shutting down Napster. In unanimous decision, 3-judge panel of 9th U.S. Appeals Court, San Francisco, said Chief U.S. Dist. Court Judge Marilyn Patel’s preliminary order requiring Napster to police its file-sharing system for copyrighted songs and, later, her order closing service for failure to comply, were proper. They said modified preliminary injunction “correctly reflects the legal principles of contributory and vicarious copyright infringement that we previously articulated.”
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Napster said decision wouldn’t hurt its new business. Company was “pleased,” spokeswoman said, that court reaffirmed that record labels must provide Napster with notice and list of copyrighted works appearing on system before it must block access to them. Although 9th Circuit also dismissed Napster’s appeal of district court’s modified preliminary injunction and shut-down order, spokeswoman said, “Napster has since developed a new service and business model that will not be adversely affected” by ruling.
Appeals court quickly dismissed Napster’s claims that modified preliminary order was vague and that Patel improperly had delegated her authority to technical adviser. Court also didn’t buy Napster’s argument that new filtering mechanism required by Patel failed to recognize that Napster’s duty to police its system was “cabined by the system’s current architecture.” File-swapping company has ability to find infringing materials on its search indexes and right to terminate users’ access, court said. To avoid infringing, Napster must police system to its fullest extent. New filtering mechanism isn’t departure from Napster’s policing ability, court said, because it still requires company to search files on index for infringements. Once it became clear that Napster’s original blocking system wasn’t working, judges said, it was within trial court’s discretion to insist that company use system that did work. Appellate court also was unpersuaded by Napster’s argument that Patel’s order imposed “zero tolerance” compliance standard, saying order applied only to songs that record labels identified properly as copyrighted.
RIAA applauded 9th Circuit ruling, saying it affirmed once again “that Napster must do everything feasible to police its systems against copyright infringement.” RIAA has said from beginning that “technologies are available that allow copyrighted works to be filtered out of a peer-to-peer system, and the big news from today’s decision is the court’s strong endorsement of that point,” said Cary Sherman, senior exec. vp-gen. counsel. Comment from Napster wasn’t available, but ruling has little practical effect because company hasn’t offered free online file- sharing service since last summer.