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Napster goes on offensive

Launches attempt to get Appeals Court to block injunction completely

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Napster on Friday asked the US 9th Circuit Court of Appeals to completely overturn the injunction granted against it by the US District Court under Judge Marilyn Patel.

That injunction was subsequently temporarily lifted by the Appeals court pending the commencement of the Recording Industry Association of America's copyright violation case against Napster.

Napster wants that injunction thrown out altogether. Its brief, filed with the Appeals Court on Friday, claims Judge Patel made a number of legal errors in coming to her decision to force Napster to block the exchange of all copyrighted songs from its MP3 sharing software.

"The trial court, in its ruling, misunderstood and misinterpreted the standards for contributory and vicarious infringement," Napster lawyer Jonathan Schiller said after the brief had been filed. "What [the brief] does that is new and substantial is that it goes into detail about where the courts are in error."

Judge Patel's errors - if such they are - essentially centre on two areas: not agreeing with Napster's argument, and not giving enough time for the parties to present their evidence and thus not giving herself the opportunity to understand the systems involved.

"She didn't give herself the time to make sure that she understood how Napster even works," Schiller said.

Napster's existing claims - that it's users are sharing music without charging for it, so are protected by the US Home Recordings Act, and that Napster is not responsible for how what its users do with the service, a protection granted by the Digital Millennium Copyright Act - have both been rejected by Judge Patel.

Friday's brief says her decision has wider implications than the dispute between the RIAA and Napster. "If the decision of the District Court is permitted to stand, every new technology used to transmit, route, or exchange data subject to the copyright laws using the Internet - and many existing technologies - will be affected," is says.

Napster's point is that Judge Patel, by not allowing either side to present evidence for their case, missed this issue and thus should not have agreed to the temporary injunction.

Of course, that's primarily why the Appeals court overturned the injunction, citing how the case was a precedent-setting one - "issues of first impression", in legal speak. Why it should now chuck the injunction out completely, just because Napster is telling them what they already knew, is open to question.

Still Napster's action on Friday will delay the case further. The Appeals court has given the RIAA until 8 September to respond to the new Napster brief, at which point it will presumably set a new date for the trial. The downside for Napster is that if the case ultimately goes against it, the greater the damages it will have to fork out for its (as yet unproven) copyright violation.

That wasn't lost on the RIAA. "It is frustrating, of course, that the tens of millions of daily infringements occurring on Napster will be able to continue, at least temporarily," the organisation's president, Hilary Rosen, said after the brief was filed. ®

Click here for full coverage of the RIAA vs Napster case

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