Recording industry argues for Napster injunction

SAN FRANCISCO--Record industry attorneys today asked an appeals court to stick to an injunction deadline that could put Napster out of business by midnight PT today.

The attorneys said that any delay would cause "extensive harm" to artists, songwriters, record companies and music publishers.

In a 21-page legal brief filed this morning in the 9th U.S. Circuit Court of Appeals, the Recording Industry Association of America (RIAA) said a preliminary injunction granted earlier this week against Napster only requires the start-up to stop trading copyrighted music--not to go out of business. The RIAA filing said Napster could continue to provide its chat service, for example.

On Wednesday, U.S. District Judge Marilyn Hall Patel granted the RIAA's request for an injunction in a lawsuit, filed late last year, accusing the service of massive copyright violations. She refused Napster's request to stay the injunction in her oral ruling, saying the company must comply by midnight PT today despite objections that it could only do so by shutting down completely.

Napster attorneys yesterday filed an emergency stay request with the 9th Circuit to postpone the injunction while it prepares an appeal. The appeals court is expected to issue its decision later today before the injunction takes effect.

In granting the RIAA's request for a preliminary injunction, Patel found that the plaintiffs had provided enough evidence to show a strong likelihood of success at trial.

Patel's order applies only to the swapping of copyrighted music on Napster. The company could still trade music that is approved by artists, and it could operate its message boards, which have seen a flurry of angry postings from fans since Wednesday's surprise court decision.

The order, however, does not directly affect the estimated 20 million people who have used Napster's software to download countless MP3-encoded songs since last year. The record industry would have to file separate lawsuits against individuals, which is highly unlikely.

Patel also ordered the RIAA--which represents the "Big Five" record labels--Bertelsmann's BMG Entertainment, EMI Recorded Music, Sony Music Group, Seagram's Universal Music Group and Warner Music Group--to post a $5 million bond to compensate Napster for lost business should the start-up prevail in the case.

"Napster wrote the software; it's up to them to write software that will remove from users the ability to copy copyrighted material," Patel said. "They created a monster...That's the consequence they face."