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Judge blocks closing order for Napster

The courts will decide how to manage pirated songs, which anger the music industry but are a way of life for many.

By SCOTT BARANCIK

© St. Petersburg Times, published July 29, 2000


With just hours to go Friday before the music-sharing network Napster was scheduled to be shut down by court order, 14-year-old Patricia Delgado of Lutz strode into Record Town at WestShore Plaza. She plunked down $8.99 for the weapon the recording industry fears most:

Three blank CDs, suitable for copying about 45 pirated songs.

"Once it's on the radio," said Patricia, who will attend Academy of the Holy Names prep school in Tampa this year, "you're almost sure it's on Napster."

Like an estimated 20-million other Napster users worldwide, Patricia received a reprieve Friday evening when two judges on the U.S. Court of Appeals in San Francisco blocked the shutdown order. The appeals judges said "substantial questions" had been raised about "the merits and form of the injunction" that a lower court judge had issued earlier in the week.

Napster is in litigation with the Recording Industry Association of America, which seeks to protect record companies and their musical stars from copyright infringement and lost sales.

Friday's ruling doesn't settle the fight over music-sharing on the Internet, but it allows Napster's users to keep swapping songs for weeks until the full appeals court acts on the dispute.

"I am happy and grateful that we do not have to turn away our 20-million users and that we can continue to help artists," said Napster founder Shawn Fanning, who portrays his creation as a showcase for the work of new musicians.

RIAA president Hilary Rosen said she was optimistic the recording industry eventually would win. "It is frustrating, of course, that the tens of millions of daily infringements occurring on Napster will be able to continue, at least temporarily," she said.

But Napster devotees have no sympathy for the big companies, or even for the musicians the mostly young fans idolize.

"Artists should just deal with technology advancing and find other ways to make money," Patricia Delgado said. "Like sell T-shirts or make dolls like Britney Spears sells."

Melissa Rymer, a 14-year-old from Valrico, said rapper Emimem, her favorite artist, "would be mad that we're taking money from him. But he should deal with it."

The threat of losing Napster had created a protest movement of sorts.

On one Web site, more than 75,000 people had signed an electronic petition vowing not to buy music unless the recording industry group dropped its lawsuit.

Lawsuits, intellectual property, free speech, dollar figures with rows of zeros: It's a lot to digest for Napster's youthful users, who may not be used to following the back and forth of courtroom battles.

Then again, few gadgets have captured so fierce a following as Napster, which Northeastern University student Fanning unveiled in January 1999 from his dorm room.

On Tuesday, the day before U.S. District Court Judge Marilyn Patel issued the preliminary injunction, 443,070 users logged in. By Thursday, 758,372 members stopped by for last-minute downloads, according to Nielsen/Net-Ratings.

What's at stake is money. A lot of it. Music industry representatives argue that Napster eats away at CD sales by giving away what would otherwise cost $15 or $16 per disc.

Despite arguments to the contrary -- a study released last week by Jupiter Communications said users of music-sharing technologies are 45 percent more likely than non-users to have expanded their music purchases -- it's hard to refute the industry's claims.

Take Patricia Delgado. Together with her two older brothers, she said she has downloaded 460 pirated songs through Napster and transferred them to CDs using a $200 piece of equipment called a "burner." The last music CD she bought at a store was Britney Spears' Baby One More Time. It was released in January 1999.

Paul Gamache, a 19-year-old college student and coffee jock at Barnie's Express Cafe in WestShore Plaza, toted dozens of homemade CDs to work Friday with hand-written names like "Wayne's Mix."

"It's all about getting stuff for free," he said.

Not all Napster lovers turned their ire toward the music industry. Stephen Courchaine, a 29-year-old employee at Master Packaging in Tampa who learned about the song-swapping site from a friend at MacDill Air Force Base, blamed the courts.

"I think it's a little too much government," he said. "What would be the difference from them walking into a high school classroom and saying, "You can't trade those CDs and cassettes anymore' ?"

Even if the recording industry does convince the courts to shut Napster down, industry analysts warned against complacency.

Record companies "should not be taking this as a strategy for the future," said Eric Sheirer, an analyst with technology research company Forrester Research. What the industry must do, he said, is "find out what it is consumers liked about Napster and provide that same kind of service themselves."

But some Napster users aren't the least bit concerned by the controversy. They already are checking out dozens of Web-based alternatives.

"They may shoot down one company," said a 19-year-old computer science student at Hillsborough Community College whose online name is "Plagues." "But another one's going to come up in its place. They're trying to swim upstream."

- Information from Times wires and Bloomberg News was used in this report.

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