"It's pretty much acknowledged by Napster that this is infringement, because of the users' agreement which implies infringement and by statements made in their own documents," Patel said, in explaining her ruling -- which, barring last-minute legal maneuvering or reversal between now and Friday, will remain in effect until she reaches a final decision in the case. The "statements" she refers to are early e-mail messages written by Napster's teenage founder Shawn Fanning and others who helped build the business, touting their software as a way to get your favorite songs.

Patel's decision was an instant defeat for Napster, the wildly popular tune-swapping service that has threatened to dethrone the record companies by helping music lovers find digital files on the hard drives of other music fans. And it was a harsh blow to David Boies, Napster's lead lawyer -- who is hardly finished celebrating the victory he won against Microsoft as the Justice Department's counsel in the antitrust case.

Soon after taking on $15 million in venture capital and an attorney as its new CEO in May, Napster hired the high-profile Boies -- an act widely seen as one of the first smart moves made by the revenue-less company. Basically, CEO Hank Barry felt the company's legal defense should take precedence over figuring out a business plan -- and he was right. But if Judge Patel sticks to the path she's started down in this case, Barry may never need a spreadsheet.

Boies based his defense largely on two precedents. In the Sony vs. Universal Studios case, also known as the Betamax case, the Supreme Court held that VCRs were not illegal, because in addition to letting users make copies of copyrighted films, they were "capable of substantial non-infringing uses" such as recording television programs for later enjoyment, an idea the court called "time-shifting." In the RIAA vs. Diamond Multimedia Systems case, an appeals court held that Diamond had a right to make Rio portable MP3 players because consumers have the right to create and transfer -- "space shift" -- digital music for non-commercial uses.

Boies and Daniel Johnson Jr., another attorney for Napster, argued that, like Sony's Betamax, Napster could be used for "non-infringing" purposes -- in this case, sampling new music before buying CDs or searching out unknown artists.

But Patel would have none of that argument, and sided with the record companies that say 87 percent of the songs found on Napster are copyrighted material. "While it may be capable of other things, these seem to pale in comparison to what Napster was created for, promoted for and how it's used today," she said. Napster's claim that it was built for David not Goliath, small artists as opposed to big, looked like an afterthought, she added, something "that's come lately to the table, after the suit started."

The Free Software Project
Read Andrew Leonard's book-in-progress on Linux and open source -- and post your comments.