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Record Labels Oppose Napster's Rehearing Petition

Major record labels planned to file on Wednesday legal documents opposing efforts by song-swap company Napster – now operating under a crippling injunction – to get a rehearing in a San Francisco appeals court.

The U.S. Court of Appeals for the 9th Circuit ruled in February that Napster was infringing on copyrights and directed Judge Marilyn Hall Patel of the U.S. District Court in San Francisco to issue a preliminary injunction.

Napster requested a rehearing shortly after the appeals court decision in February and has subsequently asked if it could supplement that request with material from proceedings at the U.S. District Court, which issued the injunction.

Patel issued the injunction on March 5, requiring Napster to bar the trading of copyrighted songs from its directory. The judge also recently held a hearing related to Napster’s compliance.

“We’re going to oppose (Napster’s request) on grounds that anything that transpires in the District Court after the court of appeals (February) opinion is not relevant to the petition for a rehearing,” said Russell Frackman, another attorney representing major music labels.


Napster’s lawyers say the positions advanced by the labels since the injunction show how the language in the 9th Circuit opinion can at times have contradictory interpretations.

“Our en banc petition (request for a re-hearing) sought review on the grounds that certain language in the 9th Circuit opinion had the potential for providing contradictory directives and overriding an important precedent set by Sony Betamax case,” said Robert Silver, an attorney at Boies, Schiller, which is representing Napster.

He cited a precedent from an earlier case involving the Sony Betamax, which held that reproduction technology used for substantial non-infringing uses cannot be enjoined, except to require that control over infringing uses be exercised within the limits of the technology’s architecture.

“Napster is doing everything possible to control challenged uses of the system within the limits of its peer-to-peer technology, including pursuing intensively every form of technological innovation,” Silver said.

The biggest labels, including Vivendi Universal’s (EAUG.PA) Universal Music, Sony Music (6758.T), Warner Music (AOL.N), EMI Group Plc (EMI.L) and Bertelsmann AG’s (BTGGga.D) BMG, first sued Napster for copyright infringement in December 1999.

Napster has come under fire for its inability to block trading of copyrighted songs completely following the issuance of the injunction. At recent hearing, Patel called Napster’s efforts to block unauthorized music “disgraceful” and left open the possibility of shuttering the service.

Music industry experts have said that many of the thousands of titles that record labels have asked Napster to block remain available on the system.

Napster’s service, developed by a college dropout, has attracted more than 60 million users by enabling fans to swap without payment MP3 files, digital files created via a format that compresses the music on compact discs.

Several technical and music industry experts have called for Napster to filter its service by searching for songs with technology known as digital fingerprints to analyze the content of the MP3 files.

But Napster says it requires the file names to prioritize which material to block.

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