Appeals court turns down Napster request

Associated Press

SAN FRANCISCO — A federal appeals court has upheld its February decision that Napster contributes to copyright infringement and must remove protected works from its song-swapping service.

In a Friday ruling made public yesterday, the 9th U.S. Circuit Court of Appeals said it would not revisit the three-judge decision with all 11 judges.

The court's ruling leaves the U.S. Supreme Court as the only remaining legal arena for Napster.

"We will review our legal options going forward," said Jonathan Schwartz, Napster's general counsel for the Redwood City-based company.

In February, the three-judge circuit panel upheld a federal judge's order demanding that Napster remove copyright works from its system. Napster argued that it was not facilitating copyright infringement, a position the appeals panel strongly rejected.

Napster is now removing songs from its service, an undertaking that is proving difficult as users continue to resurrect songs killed from the system.

"As far as we are able to tell, a lot of our stuff is available on Napster in some shape, form or the other," said Russell Frackman, an attorney for the recording industry.

A recent analysis by the Internet research firm Webnoize found that Napster use has plunged 41 percent since the online company added song-screening technology to begin complying with orders to remove copyright works.

Frackman said the Recording Industry Association of America is still pursuing a federal court trial in the case and will seek an unknown amount of damages for copyright infringement from Napster.

Napster, meanwhile, is moving toward legitimacy. Three weeks ago, the former music industry bad boy said it struck a distribution deal with three record labels that are expected soon to launch an online music subscription service.