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With at least one techie on the two-judge panel and a reputation for tackling high-profile technology cases, it’s probably not much of a surprise that the 9th U.S. Circuit Court of Appeals decided Friday it wanted a piece of the Napster case. The court granted Napster’s request to lift a preliminary injunction just hours before the popular Web site would have been shut down under a court order from U.S. District Chief Judge Marilyn Hall Patel. But less than a day after Patel issued the ruling, Judges Alex Kozinski — a known technology buff — and Barry Silverman snapped the case up. “[Napster] having raised substantial questions of first impression going to both the merits and the form of the injunction, the emergency stay and to expedite appeal are granted,” they wrote. The case will surely be the latest in a series of groundbreaking rulings from the 9th Circuit in its growing reputation as the epicenter of technology law in the country. Kozinski and Silverman may be tapped to sit on the three-judge panel that hears the case, along with Judge Thomas Nelson. Kozinski, for one, is well-known for being tech-savvy. He has even written about how to build a home computer. A former clerk of Kozinski’s is working on the MP3.com suit filed in New York. Rory Little, a professor at Hastings College of the Law who follows the 9th Circuit closely, said he wasn’t surprised by the decision. “It’s reflective of how new all this stuff is and the court’s being cautious in some sense,” Little said. The panel told Napster to file its opening brief by Aug. 18 — just three weeks from the order lifting the injunction. Final briefings are due Sept. 12, and the court will hold a hearing on the earliest available date after that. In court briefs, Napster said that “this case is one of the most important, and closely watched, cases involving the application of copyright laws to Internet activities,” a statement surely not lost on the motions panel that decided to hear the case. Napster is the subject of a lawsuit filed by the Recording Industry Association of America and several record companies, which allege the site facilitates massive copyright violations by an estimated 20 million users trading digital versions of songs over the Internet. The RIAA claims around $300 million in losses from the downloading of copyrighted songs, although a widely reported study shows that Napster and similar Web sites may actually boost music sales. Immediately after Patel issued the injunction from the bench Wednesday, Napster appealed. The 9th Circuit must hear appeals of preliminary injunction, but the court’s decision to lift the injunction was regarded as the most significant development. The case is effectively out of Patel’s hands. Lawyers for composers who filed a suit against Napster were confident they would prevail. “The 9th Circuit has looked at this for a day,” said San Francisco-based Coblentz, Patch, Duffy & Bass partner Jeffrey Knowles, adding that after further review the plaintiffs would prevail. “My confidence in the outcome is not shaken.” It will likely be the latest in a long line of high-profile tech rulings the court has issued in recent years. Several of the major cases cited in A & M Records v. Napster, 00-16401, were decided by the 9th Circuit. “The 9th Circuit has proven to be a very progressive and very tech-savvy court,” said San Francisco-based Orrick, Herrington & Sutcliffe partner Michael Carlinsky, representing MP3.com in a similar suit against the RIAA. Attorneys for Napster had argued that Patel’s injunction would cause the site to go bankrupt, was “impermissibly broad” and that significant questions of first impression should have been decided at trial. Daniel Johnson Jr., a partner at Palo Alto, Calif.-based Fenwick & West, who represents Napster, said, “We’re obviously very excited about the ruling and are now going to be busily preparing our brief.”

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