Litigator’s View

Tara Donovan on the latest development in online law in the Record Association of America’s copyright case against Napster

On Wednesday 26 July Chief Judge Marilyn Hall Patel surprised everyone with the ferocity of her rejection of the defences raised by Napster to the action for contributory and vicarious copyright infringement brought by the Record Industry Association of America (RIAA).

In granting a preliminary injunction, Judge Patel declared that the RIAA had not simply shown a reasonable likelihood of success, but a strong likelihood of success.

She was dismissive of Napster’s claim that her ruling to stop aiding consumers engaging in copyright infringement would force the music file-swapping service to close.

The RIAA hailed the decision as a landmark victory. Napster’s lead lawyer David Boies, famous from his years at the Department of Justice pursuing Microsoft, vowed to lodge an emergency appeal. And in a nail-biting development, two judges from the Ninth Circuit Court of Appeals stayed Judge Patel’s order just moments before it came into effect. The appellate judges declared that Napster’s lawyers had raised “substantial questions”, which they feared may never be addressed if Napster went out of business in the meantime.

We will now have to wait for the next instalment in the dramatic test of whether copyright rules apply in the online world. The Appeals Court granted Napster’s request for an expedited trial and by 18 August and 8 September the parties have to file their respective briefs. The court will then set a date for oral arguments.

In the meantime, to the dismay of the music industry, users are stampeding to the service. The high-profile media attention the litigation is attracting is giving Napster publicity and exposure it could not have paid for.

Tara Donovan is a partner in the music group at Denton Wilde Sapte.