In the worst judgment since the Supreme Court’s coronation of King George, a federal appellate court has dealt what could be the proverbial “death blow” to Napster, Inc.
The ruling handed down by the Ninth U.S. Circuit Court of Appeals on Monday, February 12th, upheld almost all aspects of an injunction against Napster issued by a lower court last July.
Napster said at the time that U.S. District judge Marilyn Patel’s injunction- which ordered it to remove all copyrighted materials from its service- would force it to shut down while the music industry’s copyright lawsuit against it goes to trial.
The appeals court almost immediately decided to review Patel’s injunction, putting it on hold as they weighed its merits, a process they completed just this past week.
A three judge panel from the appeals court wrote in its decision that Patel “correctly recognized that a preliminary injunction against Napster’s participation in copyright infringement is both warranted and needed.”
They did find, however, that Patel’s injunction was “too broad in scope” and ordered her to immediately write a new, more narrow injunction, which would still force Napster to keep copyrighted material off its service.
Under the new injunction, record labels will have to notify Napster of specific titles that are on its system before the company is required to remove links to it. Under Patel’s injunction Napster would have to “police” it’s own database. The new ruling also suggests that Napster cannot be held accountable for misnamed files, i.e. songs clever users make available under false names (hint, hint).
The bad news is that even with those changes to the injunction, if Napster guru Shawn Fanning cannot come up with a way to remove specific songs, it won’t be able to keep operating once the new injunction is issued. Until that injunction sees the light of day the service is allowed to continue operating as normal.
“We don’t really know what the rules are, what the boundaries are. We don’t have a good sense about what the court wants us to do,” Fanning said. “It’s still not clear what is going to happen.”
Fanning went on to express a concern that many in the industry are already whispering about. “I don ‘t think this will stop the progress we’re making in terms of building the service. I do think that if we are forced to shut down while litigation is being resolved, it will result in a huge number of unhappy people dispersing to other similar sites”.
In other words, start boning up on how to use Limewire.