Archive of UserLand's first discussion group, started October 5, 1998.
Re: Napster: yesterday's survey
Author: Jeremy Bowers Posted: 7/27/2000; 10:09:44 AM Topic: Napster: yesterday's survey Msg #: 19195 (In response to 19190) Prev/Next: 19194 / 19196
IMHO, not being a lawyer, Judge Patel had no option but to slap the injunction on, based on the evidence presented, and I'm 100% certain that the injuction will stand in the face of any appeal now being mounted by Napster Inc.I'm not a lawyer either, but David Boies' court brief (that's a PDF, by the way!) had some interesting stuff in it. In particular, one passage strikes me as a very strong and clear argument that this injunction should never have been issued and could very well be overturned in the future. Starting on Page 30:
X. THE BALANCE OF HARDSHIPS TIPS SHARPLY AGAINST AN INJUNCTION.The law is clear that a preliminary injunction must be denied if the balance of hardship on the defendant is too great. Abend v. MCA, Inc., 863 F.2d 1465, 1479 (9th Cir. 1979), aff’d sub nom, Stewart v. Abend, 495 U.S. 207 (1990). Without an injunction, Plaintiffs will suffer no harm. An injunction against Napster could not significantly protect Plaintiffs’ intellectual property, as other file sharing programs, such as Scour Exchange, CuteMX, I-Mesh and Gnutella,would expand to take Napster’s place. Hall Decl. at ¶¶ 15-19; Barry Decl. ¶ 13. Further, an injunction would do nothing to eliminate the millions of CDs available on the Internet.
By contrast, the requested injunction would effectively put Napster out of business. Its irreversible effects on Napster are palpable and certain: closing its service and severing important relationships with investors, its own employees, and users who would rapidly transition to other file-sharing and directory services. Barry Decl. at ¶ 13; Hall Decl. at ¶ 83.
Yeah, it's a biased source, but if the root argument is true, and I doubt it's completely false, this injunction was very wrong.
Based on the tone of the judges voice I'm picking up reading The Standard, I think the judge has already ruled.
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