Napster Lives for Another Few Weeks

By Robert Menta

The judicial panel for the federal appellate court grilled lawyers on both sides of the Napster trial and ended the day with a decision to adjourn without a decision. That move gave Napster at least a few more weeks of life, as it left in place a temporary stay of Patel's order to shut down the program. This allows Napster to continue functioning until a final decision is issued by the panel.

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The court doesn't even need to render a decision beyond sending the case back to the lower court for trial. But many attorneys believe that the court will take a guiding role and rule on at least a few of the legal questions pertaining to this case.

"There is so much riding on it, not just for Napster but for other Net companies, that there is incentive to give us guidance," said Fred von Lohmann, an attorney with Morrison & Foerster in San Francisco.

The court sees the seriousness of this trial and the effect it will have on technology in general in the future. They are cautious not to make a mistake similar to one that would have been made had VCR's been declared illegal by the Supreme Court (it was declared copyright infringing in the second highest court in the land).

The main issue here in Napster's favor is does the program have a significant part of its use for non-infringing purposes. If so, the panel will probably allow the company to run unimpeded until the actual trial is concluded. This hearing is specifically set up to answer that question, should Napster be allowed to stay open during its trial in the lower court. As time goes on, this issue gets stronger for Napster.

"This is a situation where the number of noninfringing uses is multiplying as we speak," said David Boies, Napster's lead attorney. "The Supreme Court said you can't just take a snapshot and ask how (a technology) is being used today."

One example might have come from one of Sony's artists. The band the Offspring intended to release it's latest CD on the Net for free in the MP3 format to test the promotional powers of online trading against record sales. Such a move, if successful, would quickly be adopted by other bands and that would aid Napster's case as it would become the main distribution vehicle outside of each bands web site.

Sony was not about to allow this to happen. They put all of their corporate weight on the band including threats of legal action and forced the cancellation of the event.

For now, Napster users have a short reprieve on the service whose traffic has already increased significantly in the past few weeks for fear it will be cut off. It still may yet, and possibly as soon as next week.

If you don't have a song list yet, start jotting one down. The stakes here are more than big, they are historic, and there is a lot of money and power on both sides of the camp who will be affected by the ruling.

Copyright 2000 MP3 Newswire. All rights reserved.


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