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U.S. District Court Judge Marilyn Hall Patel effectively shut down the Napster online music-swapping service Wednesday, saying the Web site represented wholesale infringement of copyrights held by record labels and composers. Patel’s order takes effect Friday at midnight and stays in place until the end of an as-yet unscheduled trial in a copyright infringement suit filed against Napster by several major record companies and music publishers. The judge has enjoined Redwood City, Calif.-based Napster from causing or assisting Internet users from “copying or duplication of all copyrighted songs and musical compositions of which the plaintiffs hold copyright.” The case is a closely watched one because it will determine whether Internet technology can be used to enable massive copying of copyrighted works. Napster’s Web site provides free software that allows visitors to the site to share MP3 music files with each other. The Recording Industry Association of America says most of the music being downloaded through Napster’s system is copyrighted. In A&M Records Inc. v. Napster Inc., 99-5183, filed in December, the association and several individual record labels charge Napster with contributory and vicarious copyright infringement. The suit has since been consolidated with a class action filed by music composers in April, Leiber v. Napster, 00-0074. The plaintiffs sought a pretrial injunction against Napster, saying its continued operation was causing them irreparable harm. Before an overflow crowd Wednesday at the U.S. District courthouse in San Francisco, Patel agreed, noting that there was evidence of reduced CD sales and that record labels were having difficulty entering the digital download marketplace. She also said there’s a strong likelihood that the plaintiffs’ arguments of contributory and vicarious infringement would succeed. “Napster supplies the software, the search engine and the means of establishing a connection, and without these a user could not find the songs,” Patel said. Patel gave a lengthy list of reasons for her injunction, most eviscerating the defendant’s arguments that Napster was not harming the copyright holders and that its activities weren’t protected under court precedent or federal law. “Because this is such a wholesale copying effort — it’s not as if it’s a handful of songs — I’m not willing to put the burden on the plaintiff,” Patel said. She said it’s up to Napster “to figure out a way not to facilitate copying of copyrighted material.” The judge said she was not trying to shut down the service and would allow it to continue non-infringing activities, such as chat rooms and services for new artists. But Napster attorney David Boies argued that the order will in effect shut down the site, because it is unable to distinguish between copyrighted and non-copyrighted works. “The only way to do this is to stop the service,” Boies said. Patel, however, shot back: “But what about all those substantial, non-infringing uses you were trying to convince me of?” The hearing was tough from the start for the Napster attorneys. Boies, the lead prosecutor in the U.S. Department of Justice’s antitrust case against Microsoft Corp., presented the defense along with Fenwick & West partner Daniel Johnson Jr. Patel sharply questioned them about arguments that the service could be used for anything other than copyright infringement. “The guts of the Napster system is to facilitate the uploading and downloading of music, much of which is copyrighted,” Patel said. During the hearing, only 50 people were allowed in the courtroom. In an overflow room and in the hallway outside, reporters, Internet entrepreneurs and lawyers — including the attorney for heavy metal band Metallica, which has criticized Napster — strained to hear the proceedings. Napster initially sought dismissal of the suit, claiming that its system of servers functioned as a “mere conduit” for information and was thus exempt from copyright infringement under the Digital Millennium Copyright Act of 1998. However, Judge Patel dismissed this argument in a May 5 ruling. The RIAA subsequently sought the preliminary injunction against the company. Patel set a $5 million bond for the plaintiffs to cover the Web site’s financial losses prior to the trial, assuming Napster emerges victorious. Boies had sought a bond of $800 million to $1.5 billion.

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