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For 20 million Napster users, the ability to download copyrighted music for free from the Internet may come to an end — at least temporarily — on Wednesday. That’s when U.S. District Judge Marilyn Hall Patel in San Francisco will decide whether to grant the Recording Industry Association of America’s request for a preliminary injunction against San Mateo, Calif.-based Napster, Inc. If she does, she will effectively pull the plug on the online music swapping service pending the outcome of a trial. Napster’s Web site provides free software that allows visitors to the site to share MP3 music files with each other. The RIAA 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. 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, Patel dismissed this argument in a May 5 ruling. The RIAA subsequently sought a preliminary injunction against the company. Many attorneys expect Patel will grant the RIAA’s request. “It may be politically the easiest thing to do,” said Michael Rhodes, a partner in Cooley Godward’s San Diego office and an attorney for MP3.com in a separate legal battle with the RIAA. However, he questioned why an injunction would be granted before a trial was held. Mark Lemley, a professor at Boalt Hall School of Law, said it’s a tough call as to what Patel will do. “I think the thing that’s going to give Napster the most trouble is the statistical evidence the plaintiffs present that the overwhelming majority of material [downloaded through Napster's system] is pirated music,” Lemley said. “If it comes down to the question, ‘Are all those postings of songs fair use?’ I think Napster’s in trouble,” Lemley added. Napster attorney Daniel Johnson Jr., a partner at Palo Alto, Calif.’s Fenwick & West, said the judge “can’t enjoin all file sharing because not all the file sharing involves infringing activity.” Johnson is representing Napster along with fellow Fenwick partner Laurence Pulgram and David Boies, lead prosecutor in the U.S. Department of Justice’s antitrust case against Microsoft Corp. Johnson added that the case can only be resolved after a full trial given the conflicts over technology and the impact Napster is having on record sales. In a brief filed earlier this month, Napster’s attorneys outline several reasons why a preliminary injunction should not be issued. They cite the “absolute right” of consumers to create and transfer digital music for noncommercial purposes as provided under the Audio Home Recording Act of 1992. They also cite the Supreme Court’s 1984 ruling in the Sony Betamax case, which held that videocasette recorders could go on the market because they could be used for numerous and substantial non-infringing uses. Napster, they argue, has essentially the same protection. They also cite “fair use” ways of using Napster, such as space shifting and sampling. In addition, Napster’s attorneys claim the plaintiffs have engaged in “copyright misuse.” Plaintiffs, they say, are seeking to extend their copyright monopoly to eliminate or control Napster’s system for electronic music distribution. Whatever the outcome of Wednesday’s hearing, many attorneys believe Napster ultimately may work out an agreement with the recording industry. Two other companies embroiled in lawsuits with the RIAA have done so. Early this year the RIAA filed suit against MP3.com for copyright infringement. The company copied thousands of CDs onto its servers to enable those using its My.MP3.com service to listen and download their CDs off the Internet. A New York federal judge ruled in April that MP3.com was liable for copyright infringement. Rhodes said MP3.com has reached a settlement with two of the five major record labels. Under licensing agreements, MP3.com can use the labels’ copyrighted recordings in its My.MP3.com service. Rhodes said it would be more difficult for Napster to fit into a licensing scheme. “It’s difficult to see how you can monetize the behavior of Napster,” Rhodes said. Would the company pay “a fee per listen or upload? And in Napster’s [case] who is going to pay whom?” In another legal dispute, MP3Board Inc. has come up with a technology fix to appease the RIAA. The Santa Cruz, Calif.-based company uses automated search engines to link Web sites that provide downloadable MP3 files. The RIAA claimed the links constituted copyright infringement. In response, MP3Board filed a complaint last month in San Jose federal court seeking a declaratory judgment that the automated process of linking one Web site to another does not constitute copyright infringement. But since then, MP3Board apparently has conceded to the RIAA’s concerns. The company is introducing an automated process that will enable copyright holders to log in to MP3Board’s Web site and check- mark the links they regard as infringing. These links “will be removed in a certain period of time,” said MP3Board’s attorney Ira Rothken, a San Rafael solo practitioner. Rothken believes Napster could avoid its legal woes if it had “an interface for copyright owners to search for material they thought was infringing.” But Fenwick’s Johnson said such a policy would be “a prior restraint.” He said this would exclude all recordings by a given artist, such as live recordings that the performer wishes to be freely available to the public. For example, at the rock band Metallica’s request, Napster blocked more than 300,000 user screen names from its service. But Johnson said they included users who were swapping the band’s live recordings, which the band allows to be exchanged. However, the question looms large as to whether Napster will have to negotiate some deal with the RIAA to assure that the owners of copyrighted recordings get paid. “That’s the best result from society’s perspective,” Lemley said. “Is it inevitable? I don’t know about that.”

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