JUDGED BY THEIR PEERS

Napster as we know it may soon be going down—but don't cancel your subscription to the resurrection.

After four months of waiting, the United States Court of Appeals for the Ninth Circuit has affirmed the preliminary injunction against Napster—well, most of it.

The court's three justices, Mary Schroeder, Robert Beezer and Richard Paez, have also circumscribed elements of Judge Marilyn Hall Patel's injunction and sent it back to her for re-working, saying the injunction was "overbroad" (sic).

The much-anticipated ruling, some 58 pages long, upholds the fundamental contention of the RIAA-backed litigants in the case—that Napster must stop facilitating the exchange of unlicensed copyrighted material and may be liable for vicarious infringement. The court said that if record companies, artists or publishers point out copyrighted material on Napster, the netco must remove links to the offending tracks from its search index or be liable for copyright infringement.

The injunction will take effect once Patel has revised it to the Appellate Court's satisfaction. Legal experts indicate that Patel will be thorough, but quick, expecting the revised injunction to be issued within a week.

In the meantime, you can get back to downloading Weird Al songs while pretending to work.

"This is a clear victory," proclaimed impartial observer and RIAA head Hilary Rosen. "The Court of Appeals found that the injunction is not only warranted but required. And it ruled in our favor on every legal issue presented."

"Napster is not shut down, but under this decision it could be," reads Napster's statement. "We are very disappointed in this ruling by the three-judge panel and will seek appellate review. The Court today ruled on the basis of what it recognized was an incomplete record before it. We look forward to getting more facts into the record. We will pursue every avenue in the courts and the Congress to keep Napster operating."

CEO Hank Barry, founding wunderkind Shawn Fanning and legal eagle David Boies discussed the decision. Barry and Fanning read prepared statements.

"We have been saying all along that we seek an industry-supported solution," Barry noted, adding, "even if Napster file-sharing is shut down while our trial is pending, we will do whatever we can to work within the limits of the injunction to continue to provide more than 50 million Napster community members access to music."

Fanning, in turn, touted the "amazing" technology being refined for the commercial version of Napster and thanked the user community for "being so supportive."

The Napster team also underscored that its pacts with Bertelsmann, TVT and Edel were not considered by the court and demonstrate fair, non-infringing uses of the service.

When asked why the netco was carrying on the legal fight for the free service given its commercial goals, Barry replied the company was supporting a "principle." We had to look that word up, but it seems to be sorta like an idea, only without money. In any case, the Napsterites say they disagree with the court's ruling that its users are engaged in infringement.

A statement on behalf of BMG issued by CEO Rolf Schmidt-Holtz says the company "remains committed to the development of secure file-sharing services that compensate our artists and other rights holders."

The next step for Napster is either to appeal Patel's second draft injunction—either with the Appeals Court or petitioning the Supreme Court—or suck it up and move on to the trial phase.

Judge Patel, who will preside over the trial, granted the recording industry's request for a preliminary injunction, On July 26 saying that the plaintiffs were likely to win the case in the trial. The day it was to go dark, an appeal granted Napster a reprieve, sending the injunction to the Appeals Court.

Hell, this phase has taken so long Bertelsmann even went into business with Napster, possibly out of sheer boredom—though the company is still a plaintiff in this lawsuit until the new paid service debuts sometime this summer.

As expected, Napster fans flooded the site over the weekend, assuming it would be shut down Monday.