Patel Appointed Napster Mediator…Possibly Too Late.

By Richard Menta- 2/21/01

"I think they should all work out something,'' said U.S. District Judge Marilyn Hall Patel hinting at her desire for the music industry and Napster to settle the matter among themselves. From those thoughts the judge recently appointed retired federal Judge Eugene Lynch to mediate the industries grievances against the file swapping software.

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One can't blame the judge for wanting this matter settled. This is not only a highly publicized case, but one that stretches the limits of present day copyright law which many feel is no longer adequate to handle the aspirations of Internet technology. All rulings against Napster, even when properly warranted, can set precedents that could have damning ramifications on the technology industry as a whole, possibly stunting its growth. Such decisions require a technological sentience that few in the judicial world have. That is why Patel ordered the parties to mediate.

But, attempts at a fair mediation may falter due to the music industry's big win in the higher court last week.

On February 12th a three-judge panel ruled on an appeal of Patel's earlier ruling that Napster should be shut down while it waits for its case to begin this April. The panel agreed with Patel declaring that the service can be held for "vicarious copyright infringement" and said an injunction against Napster was "not only warranted but required". The panel then ruled that Patel's original injunction was too broad and gave the order back with instructions to retool it, an directive she has begun.

The problem is after this significant ruling a victorious music industry is less inclined to compromise. It is a hard core industry that has been working the courts and the legislatures long before Napster's creator Shawn Fanning was born. Now that it looks like they can slay Napster quickly, they have little incentive to negotiate. The fact that one of the five major labels has now acquired Napster (Bertelsmann ) only makes the remaining four members more resolute to shut the service down. That's because Napster's 60 million users give their competitor/partner a significant competitive advantage. Truth is, the case is no longer Napster against the world, but one fifth of the major music labels against the other four fifths.

Evidence that the music industry is going in for the final kill came four days after the appellate ruling. That's when Big Music handed the judge a modified injunction to further tighten the vise on Napster. They not only want force upon Napster the burden to seek out and remove copyright material, but now want the service to actively police and filter out all new music that appears on Billboard Magazine's weekly ''Hot 100'' singles and ''Hot 200'' lists.

This doesn't mean the judge can't push the major labels back to the bargaining table. Patel can delay modifying her injunctive order until further efforts at mediation had been made to her satisfaction. With Napster's user base inflating by the tens-of-millions that would deliver a serious setback to the recording industry. The trial itself has been Napster's greatest promotional tool. Due to begin in April, the case is expected to last for months and could push Napster over the 100 million mark because the press-worthy event would serve as more free advertising for the service.

If Napster is not shut down for the trial, the pressure is put back on Big Music to settle. With one of their own now in the Napster camp and Senator Orin Hatch pushing legislative support for the year and a half old company, the service may now have the backup to operate and grow while the case lingers in the courts, possibly for years.

Right now, there is no indication that Judge Patel will delay her injunctive order. When that order will come out, if it comes out, will be another anticipated element of one of the most suspenseful trials in a long time. If Alfred Hitchcock were a judge, he would try this case.

Copyright MP3 Newswire 2001

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