By Alex Kingsbury
U-WIRE Washington Bureau
February 13, 2001

A federal appeals court Monday handed a blow to Napster, the free online song swapping service in use on countless college campuses across the country.

In its decision, the 9th U.S. Circuit Court of Appeals in San Francisco said Napster violated the law by facilitating its users to swap copyrighted material.

The court further ordered that Napster stop its 61 million customers from using its file-sharing software without charge. David Boies, an attorney for Napster, said that the company would immediately file an appeal.

“We are disappointed in today’s ruling,” Napster CEO Hank Barry said. “Under this decision, Napster could be shut down — even before a trial on the merits.”

Hilary Rosen, president of the Recording Industry Associations of America, said that the ruling was a “clear victory.”

Barry said that the decision of the court was based on an “incomplete record,” and that Napster would attempt to remain open.

“We look forward to getting more facts into the record. While we respect the Court’s decision, we believe, contrary to the Court’s ruling today, that Napster users are not copyright infringers and we will pursue every legal avenue to keep Napster operating,” Barry said. The band Metallica, whose members ardently opposed Napster, said Monday they were “delighted.”

“The Court has upheld the rights of all artists to protect and control their creative efforts,” said Metallica in a statement shortly after the ruling. “The 9th Circuit Court has confirmed that musicians, songwriters, filmmakers, authors, visual artists and other members of the creative community are entitled to the same copyright protections online that they traditionally been afforded offline.”

The U.S. Circuit Court directed the Napster case be returned to a trial judge asking that the injunction against Napster be rewritten so it allows the company to survive provided that it is able to police its users for copyright infringement — an action Napster officials say is impossible.

In the historic legal battle, Napster argued that it was not legally responsible for the copyright infringement of its millions of users. The company’s argument rested on a 1984 Supreme Court case in which VCR makers avoided copyright infringement prosecution when the Court refused to hold the manufacturers and videotape retailers liable for individuals copying movies.

In the appeals court ruling, the three-judge panel said that the 1984 Supreme Court ruling doesn’t apply to the online company, as Napster was aware that its users were violating the copyright laws.

Napster founder Shawn Fanning said he is looking to the future.

“I’m focused on building this better service and I still hope to have it in place this year,” Fanning said. “The new technologies we are developing are amazing; I hope that, by further court review or by agreement with the record companies, we can find a way to share them with the community.”

“If Napster file sharing is shut down,” Barry said, “we will do whatever we can to work within the limits of the injunction to continue to provide more than 50 million Napster community members access to music.”