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Three judges not known for tackling technology-related issues will decide the hottest case in cyberspace — Napster Inc.’s copyright fight with the recording industry. The panel named by the 9th U.S. Circuit Court of Appeals — Robert Beezer, Richard Paez and Mary Schroeder — will hear oral arguments Oct. 2 on a preliminary injunction against Napster issued by U.S. District Chief Judge Marilyn Hall Patel. In her July ruling, Patel said record labels and music composers were likely to prove at trial that Napster’s music-swapping service is infringing their copyrighted works. She ordered the service to stop its infringing activities — a move that would have meant Napster’s demise. Two days later, however, the 9th Circuit granted an emergency stay of the injunction. The stay, issued just hours before Napster was to shut down, was drafted by Judges Alex Kozinski, Barry Silverman and Thomas Nelson. They concluded that Napster “raised substantial questions of first impression going to both the merits and the form of the injunction.” Kozinski is a well-known technology buff and has even written about how to build a home computer. But the judges set to hear the case don’t have the same kind of tech focus. Rory Little, a professor at Hastings College of the Law, said it is significant that the three-judge panel to preside over the case is different from the panel that stayed the injunction. However, he said one “can’t predict from those judges how the case will go. It’s all up for grabs.” Little said that Schroeder is friendly with Patel and that a district judge with a strong reputation like Patel’s “carries atmospheric influence.” With regard to Beezer, Little said his legal opinions are straightforward and that he is “more likely to apply plain textual meaning” to copyright law. Paez was just appointed to the court in March so has little track record on the appeals court. However, during his days on the U.S. district court, Paez was best known for a 1997 ruling that held an American company liable for human rights abuses committed by the company’s partners in Burma. Napster’s Web site provides free software that allows visitors to the site to exchange MP3 music files with each other over Napster’s servers. Last December, the Recording Industry Association of America and several record labels filed suit against Napster. In A&M Records Inc. v. Napster Inc., 99-5183, they charge Napster with contributory and vicarious copyright infringement. A similar suit was filed by a group of music composers in April. That case, Leiber v. Napster, 00-0074, is being heard in tandem with RIAA’s suit.

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