NAPSTER DESTINY MAY BE DETERMINED TODAY

Tom Petty said it best when he moaned about the waiting being the hardest part. While the rocker surely wasn't referring to Napster, his lyrics do sum up the online nation's longing for a decision regarding the fate of the extremely popular file-swapping service.

Napster, whose series of legal appeals and efforts to settle copyright infringement issues with the music industry have been almost universally rebuffed, may finally be forced to face the music today (3/2), and, by all accounts, its future looks bleak.

According to several insiders, Napster will not be shut down today. Instead, Judge Marilyn Hall Patel, who issued the original preliminary injunction against the company in July, most likely will not rule at the conclusion of today's hearing, delaying what seems to be inevitable, sources said. The Judge on Thursday (3/1) reportedly told lawyers representing both sides that her decision on Napster would not be rendered Friday, and would come at a later, still yet undetermined, date, according to sources and other published reports.

Patel is scheduled to hear arguments from the recording industry and from Napster attorneys today on modification requests to the injunction she originally issued last July.

Last month, the ninth Circuit Court of Appeals issued a ruling requiring Patel to redraft the Napster injunction (hitsdailydouble.com, 2/9), saying plaintiffs (the recording industry) must notify Napster about infringed files being swapped through the service so that Napster can police itself. Patel, who ordered the company to stop allowing the swapping of copyrighted music, has been asked by the appeals court to rewrite her ruling so that a legal Napster can continue to exist.

Two weeks ago, the RIAA submitted a modified preliminary injunction to Patel, and today's hearing is expected to focus on defining what Napster will be required to do in order to police infringing music files on its system, and thereby stay operational. Napster is expected to ask that the notification system for policing infringing files be driven by the recording industry.

It is anticipated that Napster will argue that, despite the appeals courts' unanimous rejection of its legal claims, the same opinion offers a legal course of action for Napster that temporarily bars Patel from driving a stake through the company's heart.

Even if the judge does rule against Napster, expect the company to ask for a stay until all appeals have been exhausted. Is it us, or do these actions sound a lot like those condemned prisoners offer while on death row?

Patel is slated to begin hearing arguments at 10 a.m. PST in a San Francisco courthouse.