Napster to close on Friday

Boies fails to swing Judge Marilyn

A San Francisco judge has given Napster until midnight on Friday US Pacific Time to stop aiding the exchange of copyright music, or close down.

In a hearing, Judge Marilyn Hall Patel accepted many of the Recording Industry Association of America's arguments, most ominously by refusing to accept Napster's proposition that personal computers are copying devices, and therefore qualify for the personal use provision of the Audio Home Recording Act.
By referring to "massive infringement" the Judge also denied Napster the safe harbour provision of the Digital Millenium Copyright Act (DMCA), which allows the defendant to stave off wholesale injunctions by blocking individual users.

But Judge Hall also requested that the RIAA post a $5m bond to cover loss of earnings by Napster if it is temporary closed down and then later prevails. The RIAA pledged - and subsequently lost - a similar bond when it unsuccessfully tried to prevent the release of Diamond's Rio MP3 player.

In a short prepared statement broadcast yesterday evening San Francisco time, Napster's CEO Hank Barry said that Napster planned to comply with the order, barring a successful eleventh hour appeal. "The judge said that one-to-one non-commercial file sharing violates the law. We will fight this in a variety of ways," he added, without elaborating.

"Napster wrote the software, it's up to them to write software that will remove from users the ability to copy copyrighted material. They created a monster" said the Judge. ®

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