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The US Ninth Circuit Court of Appeals failed to rule on the Recording Industry Association of America's contributory copyright violation case against MP3 sharing service Napster yesterday.

The three judges presiding over the case did not say when a decision would be made, leaving both sides wondering just where their 20-minute case summaries, made in court yesterday, have got them.

However, the judges did seem to have put the onus on the RIAA to convince why they should reinstate the US District Court's injunction against Napster, rather than on Napster to show it was not violating copyright, though since the RIAA is the plaintiff, that's perhaps not too surprising.

According to AP reports of the proceedings, the judges wanted to know just how the RIAA expects Napster to prevent its 32 million users from illegally copying music that's copyright is held by RIAA members.

"How are they [Napster] supposed to have knowledge of what comes off of some kid's computer in Hackensack, New Jersey to a user in Guam?" Judge Robert Beezer asked RIAA advocate Russell Frackman.

Check traded tracks' titles against a list of blocked songs, Frackman suggested, which it can do since shared songs are listed on a central server. Beezer noted that that might prove too much work for Napster, given the volume of music being shared, but that, surely, is Napster's problem not the RIAA's, though Frackman doesn't appear to have made the point.

That may be because the RIAA is keen not to appear the villain of the piece, which does seem how Napster is attempting to cast the organisation. Napster CEO Hank Barry said: "We're willing to pay very substantial amount to the artists. With a very conservative estimate, the first-year payments to the artists would be in the neighbourhood of a half a billion dollars," and went on to point out that his company's attempts to settle with the major music labels out of court had proved fruitless.

In other words, we're willing to work with them, but they don't want to work with us. The bottom line: the RIAA is out to shut Napster down.

Napster advocate David Boies, he of Microsoft trial fame, noted that a re-imposition of the injunction would "cripple" Napster's business and hinder artists who use Napster to promote their music. He also noted that the 1984 Supreme Court ruling which permitted Sony to continue manufacturing VCRs that can duplicate copyrighted materials also protects Napster.

Frackman argued against that, claiming Napster, unlike the VCR, had been created specifically to help listeners infringe copyrights by downloading music for free. ®

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