A federal judge displayed biased and erroneous reasoning when
she issued a preliminary injunction in July that could have forced
Napster to shut down, a lawyer for the company behind the popular
music-sharing service alleged Friday evening (Aug. 18).
For example, lawyer Jonathan Schiller said, U.S. District Judge
Marilyn Patel unfairly assumed that Napster has a detrimental effect
on CD sales, ignoring studies that show the contrary to be true.
Napster filed a brief to the 9th U.S. Circuit Court of Appeals on Friday, asking the court to permanently dismiss Patel's injunction
against the service. The injunction, which was issued in the major
record labels' copyright infringement lawsuit against Napster, was
stayed by the Court of Appeals last month, allowing the service to
continue to function.
Schiller accused the judge of "putting the burden of proof improperly
on Napster when there was any question of the evidence" and
"resolving uncertainty in the evidence in favor of the [recording
Schiller also said the recording industry was threatened by Napster
because the company's technology is more advanced than the
"The development of a new distribution platform, which Napster has
demonstrated, will provide catch-up problems to these plaintiffs,
who were behind [Napster inventor] Shawn [Fanning] and others
who were working in this area," he said. "As a result of being
behind, and in an effort to catch up and eliminate any competitive
platform that may be out there, they want to use this decision [to
shut down Napster]."
Hank Barry, Napster's chief executive officer, said he still hopes his
company can reach an out-of-court settlement with the record
"We've been trying to propose structures that would compensate
artists," Barry said.
Representatives for the Recording Industry Association of America
could not be reached for comment Friday night.
Napster links its users online, allowing them to search for MP3 files
on each others' computers and download them. The company's
software has inspired a growing number of similar programs, such