Napster Inc. Thursday requested U.S. Court of Appeals for the Ninth Circuit for an emergency stay of the injunction ordered yesterday that, if allowed to take effect, will functionally shut down Napster as of midnight Friday.
Attorneys for Napster Inc., argued that the injunction should be stayed for numerous reasons, including that the decision:
- Wrongly stated that Napster users were engaged in direct infringement by denying other relevant case precedents and by developing a distinction between “personal” and “non commercial” use.
- Extended copyright law to cover new technologies, ignoring the counsel of the Supreme Court that such extensions should be left to the Congress.
- Was based on limited and insufficient argument. There was only one 90-minute argument, and the Judge denied Napster’s request for an evidentiary hearing.
- Ignored substantial evidence that Napster is helping not hurting the record industry.
The filing was made in San Francisco. Napster said it will be making additional statements and releases regarding this issue Thursday and Friday.
The appeal is in reaction to Wednesday’s order that the site temporarily shut down. A federal judge sided with recording industry arguments that the song-swapping service was a haven for piracy and copyright infringement.
U.S. District Judge Marilyn Hall Patel said the evidence indicated that Napster’s estimated 20 million users turned to the company to download copyrighted music.
“When the infringing is of such a wholesale magnitude, the plaintiffs are entitled to enforce their copyrights,” Patel deciding to grant the preliminary injunction requested by the Recording Industry Association of America (RIAA).
Patel’s order, which came after a two-hour hearing, instructed Napster to cease its music downloading operations by midnight Pacific time Friday.
“We are pleased with the Court’s decision. This decision will pave the way for the future of on-line music”, said Cary Sherman, RIAA senior executive vice president and general counsel. “This once again establishes that the rules of the road are the same on-line as they are off-line and sends a strong message to others that they cannot build a business based on others’ copyrighted works without permission.
“This is an important win for artists, too, because whether they distribute their music through big labels, small independent labels, or on their own, the Court has made clear that they have the right to protect their works. Whether they choose to do so is up to them. But the choice is theirs to make.
“Now that Napster’s management understands that they need the authorization of copyright owners to engage in their business, we hope that they will work with the record companies to devise innovative ways to use their technology for legitimate purposes with permission.”
RIAA, which represents companies such Seagram Co. Ltd.’s Universal Music, Bertelsmann AG’s BMG, Sony Corp.’s Sony Music and Time Warner’s Warner Music Group and EMI, contends that no court has ever held that wholesale copying and distribution of copyrighted works could be considered “fair use.”
