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Federal Judge Marilyn Hall Patel of the U.S. District Court for the Northern District of California bugled legal “taps” for Napster Inc. on Wednesday, saying the music-swapping Web site still isn’t complying with her orders to keep copyrighted material off its servers. Patel ordered Napster — which has been off-line for the last week — to stay shut down until it can comply with the preliminary injunction she issued in March. That is sure to complicate the struggling Web site’s attempts to stay alive as it works to revamp its business model and faces a growing number of potential competitors in the downloadable music market. The Redwood City, Calif.-based company had suspended its service last week to fix glitches in its database. Problems arose when the company installed a new system to identify music files that infringe on copyrights. In a March ruling, Patel ordered Napster to remove such music files from its servers once notified about their existence by record labels and music composers. In an April status conference, attorneys for the recording industry argued that Napster was not living up to Patel’s order. She subsequently appointed a neutral technical expert, A.J. Nichols, to look at compliance issues. In a message on its Web site Napster said it has received notice of more than 800,000 musical works from record companies and publishers. The company has seen a steady decline in traffic to its site as it removed files from its servers. “Judge Patel’s decision today that Napster should not resume operations until it can show that it can comply with the court’s modified preliminary injunction was inevitable given its failure to comply with the court’s order for so long,” Hilary Rosen, president and CEO of the Recording Industry Association of America, said in a statement. “While we appreciate that Napster is attempting to migrate to a legitimate business model, its inability to prevent copyright infringement from occurring on its system has only hampered the development of the marketplace in which it now hopes to compete,” Rosen said. Napster general counsel Jonathan Schwartz and outside counsel Laurence Pulgram, a partner at Fenwick & West, could not be reached for comment. Napster has also failed to get relief from the 9th U.S. Circuit Court of Appeals. When Napster appealed Patel’s original preliminary injunction, issued in July 2000, the appeals court sent it back asking her to narrow the ruling. Napster subsequently asked for the full court to review the matter, which it declined to do in June. Patel also dismissed Napster officers and directors from a separate suit filed against them and the company by music producer Matthew Katz. The defendants included Napster CEO Hank Barry, Napster developer Shawn Fanning and company co-founder John Fanning, and Napster investor Hummer Winblad. “The judge agreed with us that there is no tertiary copyright liability,” said Shawn Fanning’s attorney Annette Hurst, a partner at Howard, Rice, Nemerovski, Canady, Falk & Rabkin.

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