Judge Orders Napster To Remove All Major-label Content

In a decision that could help shape the way music is consumed on the Internet, U.S. District Court Judge Marilyn Patel granted the Recording Industry Association Of America's request for a preliminary injunction Wednesday (July 26) in its copyright-infringement lawsuit against music file-swapping Web site Napster.

The late afternoon ruling in San Francisco will be immediately appealed, said Napster attorneys, who will seek an emergency stay in the 9th District Court today (July 27). If the stay is refused, Napster will be forced to remove all infringing works by record company and music publisher plaintiffs by midnight (PT) tomorrow (July 28).

Immediately following the judge's decision, Napster lead attorney David Boies argued that Napster cannot identify all the infringing material on the site. He told the court Napster has repeatedly asked the RIAA to identify the infringing works and has been unsuccessful in obtaining a list. "If the RIAA can't identify the songs in six months, how can we identify them in 54 hours?" he said.

The judge countered, ordering Napster to come up with a software program to remove the infringing material. "Whatever you did, you have to undo it," she told Boies. She added that "it's up to [Napster] to figure it out, and I'm not willing to put the burden on the plaintiff."

Outside the courtroom, Boies called the ruling "broad and impossible to implement." In a live Web cast Wednesday night on the Napster site, Napster founder Shawn Fanning promised "to keep fighting for Napster, and for your right to share music over the Internet."

RIAA outside counsel Russell Frackman, who argued the case yesterday, does not expect the stay to be granted. "The judge's opinion was well-reasoned on several fronts and establishes a balance of harm," he told Billboard Bulletin. "I don't think the 9th Circuit will take that away."

In her decision, Judge Patel shot down Napster's defense that the software is being used for non-infringing purposes such as promoting new artists. She also determined that Napster cannot claim fair use under the Audio Home Recording Act, and dismissed the company's claim that its technology is protected under the Sony Betamax case ruling, which found that technological advancements cannot be hindered by the courts.

"Evidence has been established of copyright infringement, which should be no surprise to Napster, since that was the purpose of it," she said in court. "Napster was, and continues to be, a way to copy music without the permission of the copyright holders."

After the decision, Boies requested an $800 million bond from the RIAA to cover Napster's business losses while the parties await the trial. The request, which Frackman said is standard operating procedure in copyright cases, was reduced to $5 million by the judge. The bond must be posted Friday by 4 p.m. PT.

On Napster this morning, users posted angry missives on the site's bulletin board, with many vowing to seek out other Napster-like sites such as Gnutella to continue file swapping.

One user, writing under the name "FucktheRIAA77," wrote, "Even if Naster [sic] isn't the software that lets us download MP3's forever, it was the first successfull [sic] one, and will not be forgoten [sic]. It will be the battle cry. And hopefully after eveything [sic] is settled and the RIAA finds out they can't do anything, they will let Napster run again."

Other users called for a boycott of the RIAA, with one person going so far as to post RIAA president Hilary Rosen's personal e-mail address on the forum.