Napster contests shut down order

Napster's ongoing legal battle to stay in business resumed in a San Francisco courtroom on Friday afternoon when the online music swapping company argued that a preliminary injunction against it should be thrown out.

Napster was filing a brief with the US Court of Appeals asking why the court should allow a preliminary injunction issued by a lower court judge that would have effectively shut the company down.

The company's main argument is that its members - which it now says have swollen to 22 million - are not violating copyright as their actions are protected by the Audio Home Recording Act. This allows all non-commercial copying by consumers of digital and analog recordings.

It argued that if its members are doing nothing wrong, then neither is Napster, adding that US District Court Judge Marilyn Hall Patel, the lower court judge, was wrong to ignore the Act.

In a 45-page document filed by Judge Patel with the Court of Appeals, she explained why she imposed a preliminary injunction before awaiting the outcome of a trial.

She said she doubted that the injunction would put Napster out of business as the company claimed. "Any destruction of Napster Inc by a preliminary injunction is speculative compared to the statistical evidence of massive unauthorised downloading and uploading of plaintiffs' copyrighted works, as many as 10,000 files per second," she wrote.

The Recording Industry Association of America (RIAA), which represents the major record labels, originally sued Napster for copyright infringement last December. Lawyers for the RIAA have until 8 September to file a response to the latest filing. Napster then has a 12 September deadline to respond before a hearing takes place.

In the meantime, Napster members are still able to download and swap copyrighted material.