Napster Lawyer Accuses Judge Of Record-Industry Bias

File-sharing company files brief seeking to permanently overturn injunction.

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

industry's own.

"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

as Gnutella.