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 Monday, the 9th U.S. Circuit Court of Appeals said it would not revisit the three-judge decision with 11 judges.
The court’s ruling leaves the U.S. Supreme Court as the remaining legal arena for Napster Inc. The Redwood City-based company, embroiled in litigation from the recording industry, acknowledged that chances were slim the circuit court would rehear the case.
“We will review our legal options going forward,” said Jonathan Schwartz, Napster’s general counsel.
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.
But as finding songs on the service gets more difficult, fans are abandoning the service.
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. Also Monday, the Academy of Motion Picture Arts and Sciences, which awards Oscars once a year to movie standouts, filed a federal copyright infringement lawsuit against Napster.
The lawsuit accused Napster of allowing its users to download live, copyrighted music performed on the March 25 broadcast of the awards show. Artists who performed include Garth Brooks, Bob Dylan, Faith Hill and Sting.
That suit is nearly identical to one filed in March against Napster by the National Academy of Recording Arts & Sciences, which produces the music industry’s Grammy Awards.
Despite Monday’s legal developments, Napster 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.
The recording industry case is A&M Records Inc. v. Napster Inc. 00-16401. The case filed Monday is Academy of Motion Picture Arts and Sciences v. Napster Inc., C012483.
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