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Napster loses preliminary hearing

Must answer record industry charges, rules judge

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Controversial software developer Napster yesterday heard that the Recording Industry Association of America (RIAA) does indeed have a case it must answer. A California District Court judge denied Napster's request that the RIAA's copyright infringement case was without merit and should be chucked out of court. Napster's argument is that it is effectively an Internet Service Provider and therefore protected by the US' Digital Millennium Copyright Act (DMCA). The Act states that, in certain circumstances, ISPs are not liable when users infringe copyrights, presumably on the grounds that they can't possibly monitor all user activity and ensure it is within the law. The Judge disagreed, but the case is far from settled in the RIAA's favour. The trade body must now prove its allegations that Napster is implicit in copyright infringement and music piracy. And then it will be Metallica's turn to try to do so. Napster may yet be able to show it is protected by other sections of the DMCA, but it's going to have a tough time getting a second preliminary hearing Judge to throw out the RIAA case on those grounds, said unnamed legal experts cited by the FT. The FT contrasted the case with the recent judgement against MP3.com, and noted how the verdict that the online music company did infringe music copyrights - spurious as we think the ruling may be - has forced it into settlement talks with major labels. The inference here is that Napster may do the same. However, unlike MP3.com, Napster only has its software business, and its hard to see the software continuing to be used if the kind of limitations the music industry wants to see are forced upon it. Changing Napster (the software) to prevent its use in unauthorised duplication of music would pretty much remove the very ease of use that has made it so popular among legitimate listeners. ®

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