U.S. Supreme Court would be next venue

The Ninth Circuit Court of Appeals in California has turned down Napster‘s request for a rehearing before the full court concerning an injunction filed against the file-swapper earlier this year.

Napster’s request for a full, or “en banc,” hearing was filed shortly after a three-judge panel from the Ninth Circuit in February effectively upheld District Court Judge Marilyn Hall Patel’s injunction, issued in July of last year.

Patel refined and reissued the injunction in March, in response to comments from the panel indicating that it was overly broad. The panel also said the original injunction placed too much of the responsibility for enforcement on Napster itself, rather than the labels who believe their copyrights were violated by the service.

Napster general counsel Jonathan Schwartz said the company hasn’t yet decided how it will proceed in the wake of the Circuit Court decision. The next possible venue for appeal is the U.S. Supreme Court.

“We recognized going in that rehearing petitions are infrequently granted,” Schwartz said. “That is especially so at this stage of the case, where no trial has yet been held in the underlying case.”

Since the injunction was issued, the average number of files made available by Napster users has plummeted by 80%, and the number of tracks downloaded on the network dropped by nearly 40% from March to April, according to a recent report by media research firm Webnoize.

The Netco is racing against time to build a second-generation version of its service that it claims will compensate copyright holders and keep music secure. The service is scheduled to be unveiled later this summer.

When that happens, “we believe we will put to rest many of the outstanding legal issues” plaguing the original Napster service, said Schwartz.

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