Napster in court to plead for future

Digital music firm begs for a hearing
Written by Lisa M. Bowman, Contributor

Napster heads back to court Monday to plead for its life before a panel of appeals court judges.

The 9th US Circuit Court of Appeals is in the process of deciding whether to uphold a lower court ruling that would shut down the controversial file-swapping site.

Monday morning lawyers from both Napster and the Recording Industry Association of America (RIAA), which is suing the company, will get about 20 minutes to present oral arguments to the panel, followed by rebuttals and a chance to answer the judges' questions. The panel can rule anytime after that. Traditionally, judges take anywhere from a few days to a few months to issue rulings.

The RIAA -- which represents music labels including Warner Music Group, Sony Music Group and Universal Music Group -- sued Napster in December, alleging the company promotes illegal activity by allowing people to swap copyrighted music for free.

The 9th Circuit has already given Napster a temporary reprieve. During a hearing in July, US District Judge Marilyn Hall Patel issued a surprise ruling from the bench, ordering the company to stop the swapping of major-label music, a move that in effect would shut the site down.

But just hours before Patel's ruling was set to take effect, a two-judge appeals court panel delayed it. They said the case raises new questions about topics such as fair use in the digital age, and gave each side a chance to argue their case.

Lawyers for both sides have already submitted paper filings to the appeals court, and now they'll have a chance to present their positions in person.

In its filings, Napster has argued that it doesn't have the ability to differentiate major label songs from other musical pieces, and would only be able to comply with the ruling by closing the site, a move that would lead to job cuts.

Furthermore, throughout the case, the company has argued that people have a right to use a service such as Napster under the same legal concepts that allow you to tape programs on a VCR or make multiple copies of a music CD for personal use.

Napster also has the support of a wide range of groups that include doctors, librarians and consumer electronics makers. In a flurry of legal filings with the 9th Circuit in recent weeks, the groups argued that the anti-Napster ruling could quash new technology or threaten free speech.

Meanwhile the RIAA has made the same arguments that worked so successfully in Patel's courtroom -- namely, that Napster aims to make money by promoting the stealing of copyrighted work. The RIAA has had the support of software makers, the US Patent Office and even the National Basketball Association.

Monday's hearing comes while major shifts are taking place in the online music arena, as copyright holders seek to maintain control over the distribution of music, and new technology companies experiment with innovative ways to transmit music online.

Biting the bullet Some of the new technology companies are biting the bullet and pairing with traditional record labels.

Napster competitor Aimster reportedly is in talks with RIAA member EMI Group plc to develop a file-sharing concept amenable to copyright holders. Meanwhile, MP3.com, a music locker company that was forced to pay millions after losing a huge legal dispute with Universal, is asking federal lawmakers for help.

Some Congressmen have introduced a bill that would basically legalize MP3.com's MyMP3 service -- which is at the heart of the Universal dispute -- by letting people store and access digital copies of songs they already own on CD. MP3.com has organised a "Million E-Mail March" to support the bill.

At least one company has buckled under the threat of a music industry suit. Scour, which has a service allowing the swapping of music, video and other files, laid off most of its staff in August, saying an RIAA suit similar to the Napster litigation has scared off investors.

To have your say online click on the TalkBack button and go to the ZDNet News forum.

Let the editors know what you think in the Mailroom. And read what others have said.

Take me to the MP3 Special

Editorial standards