Napster seeks injunction appeal

Attorneys for the company filed a request for an emergency stay in the 9th U.S. Circuit Court of Appeals, asking that yesterday's order be postponed until a formal challenge to the ruling can be heard.

A three-judge panel--with Judges Alex Kozinski, Barry G. Silverman and Thomas G. Nelson--will rule on the emergency stay request. Although the appeals court is not obligated to act before the injunction goes into effect, some legal experts predicted a decision will be made tomorrow.

"They will have our papers tomorrow morning, and presumably they will address it that day," said Jeffrey Knowles, an attorney with Coblentz Patch Duffy & Bass, which represents music publishers and songwriters in the case.

In the filing, Napster said it will be forced to "close its services within 48 hours" and lay off about 40 employees within days if the injunction is not postponed. Unless the stay is granted, Napster will "suffer irreparable injury to its business reputation and customer goodwill," the filing said.

The recording industry has until 9 a.m. PT tomorrow to file its response to the request for a stay.

"We intend to make it clear that the judge was absolutely correct in her ruling and there is no basis for delaying the implementation of the injunction," said Knowles.

U.S. District Judge Marilyn Hall Patel barred Napster from facilitating the trade of copyrighted works owned by members of the Recording Industry Association of America (RIAA). She denied a request yesterday from Napster to stay the injunction, which is scheduled to go into effect midnight PT tomorrow if the appeal fails.

In granting the RIAA's request for a preliminary injunction, Patel found that the plaintiffs had provided enough evidence to show a strong likelihood of success at trial.

Since it was launched last year, Napster has signed up an estimated 20 million members. The RIAA sued the start-up in December, charging it with enabling rampant copyright theft.

Patel's order applies only to the swapping of copyrighted music on Napster. The company could still make available music that is approved by the artists and could operate its message boards, which have seen a flurry of angry postings from fans since yesterday's decision.

The order, however, does not directly affect the people who have used Napster's software to download countless MP3-encoded songs since last year. The record industry would have to file separate lawsuits against individuals, which is highly unlikely.

Patel also ordered the RIAA--which represents companies such as Bertelsmann's BMG Entertainment, EMI Recorded Music, Sony Music Group, Seagram's Universal Music Group and Warner Music Group--to post a $5 million bond to compensate Napster for lost business should Napster eventually prevail in the case.

"Napster wrote the software; it's up to them to write software that will remove from users the ability to copy copyrighted material," Patel said. "They created a monster...That's the consequence they face."