Napster Inc. Thursday requested U.S. Court of Appeals for the
Ninth Circuit for an emergency stay of the injunction ordered
yesterday that, if allowed to take effect, will functionally shut
down Napster as of midnight Friday.
Attorneys for Napster Inc.,
argued that the injunction should be stayed for numerous reasons,
including that the decision:
Wrongly stated that Napster users were engaged in direct
infringement by denying other relevant case precedents and by
developing a distinction between "personal" and "non commercial"
Extended copyright law to cover new technologies, ignoring the
counsel of the Supreme Court that such extensions should be left to
Was based on limited and insufficient argument. There was only
one 90-minute argument, and the Judge denied Napster's request for
an evidentiary hearing.
Ignored substantial evidence that Napster is helping not
hurting the record industry.
The filing was made in San Francisco. Napster said it will be
making additional statements and releases regarding this issue
Thursday and Friday.
The appeal is in reaction to Wednesday's order that the site
temporarily shut down. A federal judge sided with recording
industry arguments that the song-swapping service was a haven for
piracy and copyright infringement.
U.S. District Judge Marilyn Hall Patel said the evidence
indicated that Napster's estimated 20 million users turned to the
company to download copyrighted music.
"When the infringing is of such a wholesale magnitude, the
plaintiffs are entitled to enforce their copyrights," Patel
deciding to grant the preliminary injunction requested by the
Recording Industry Association of
Patel's order, which came after a two-hour hearing, instructed
Napster to cease its music downloading operations by midnight
Pacific time Friday.
"We are pleased with the Court's decision. This decision will
pave the way for the future of on-line music", said Cary Sherman,
RIAA senior executive vice president and general counsel. "This
once again establishes that the rules of the road are the same
on-line as they are off-line and sends a strong message to others
that they cannot build a business based on others' copyrighted
works without permission.
"This is an important win for artists, too, because whether they
distribute their music through big labels, small independent
labels, or on their own, the Court has made clear that they have
the right to protect their works. Whether they choose to do so is
up to them. But the choice is theirs to make.
"Now that Napster's management understands that they need the
authorization of copyright owners to engage in their business, we
hope that they will work with the record companies to devise
innovative ways to use their technology for legitimate purposes
RIAA, which represents companies such Seagram Co. Ltd.'s
Universal Music, Bertelsmann AG's BMG, Sony Corp.'s Sony Music and
Time Warner's Warner Music Group and EMI, contends that no court
has ever held that wholesale copying and distribution of
copyrighted works could be considered "fair use."
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