All peer-to-peer technologies were found to be illegal as a result of the napster case

This article is about the defunct peer-to-peer music download software. For the current streaming service, see Napster (streaming service). For the defunct pay service, see Napster (pay service).

Napster was an audio streaming service provider. It originally launched on June 1, 1999, as a pioneering peer-to-peer (P2P) file sharing software service with an emphasis on digital audio file distribution. Audio songs shared on the service were typically encoded in the MP3 format. It was founded by Shawn Fanning and Sean Parker. As the software became popular, the company ran into legal difficulties over copyright infringement. It ceased operations in 2001 after losing a wave of lawsuits and filed for bankruptcy in June 2002.

Napster running under Mac OS 9 in March 2001.

September 3, 2002; 19 years ago (2002-09-03)

Later, more decentralized projects followed Napster's P2P file-sharing example, such as Gnutella, Freenet, FastTrack, and Soulseek. Some services and software, like AudioGalaxy, LimeWire, Scour, Kazaa / Grokster, Madster, and eDonkey2000, were also brought down or changed due to copyright issues.

Napster's assets were eventually acquired by Roxio, and it re-emerged as an online music store. Best Buy later purchased the service and merged it with its Rhapsody branding on December 1, 2011,[1] rebranding back to Napster, July 16, 2016.[2] In May 2022 the Napster streaming service was bought by the blockchain company Algorand and the crypto-focused investment firm Hivemind.

Napster was founded by Shawn Fanning and Sean Parker.[3] Initially, Napster was envisioned by Fanning as an independent peer-to-peer file sharing service. The service operated between June 1999 and July 2001.[4] Its technology allowed people to easily share their MP3 files with other participants.[5] Although the original service was shut down by court order, the Napster brand survived after the company's assets were liquidated and purchased by other companies through bankruptcy proceedings.[6]

Although there were already networks that facilitated the distribution of files across the Internet, such as IRC, Hotline, and Usenet, Napster specialized in MP3 files of music and a user-friendly interface. At its peak the Napster service had about 80 million registered users.[7] Napster made it relatively easy for music enthusiasts to download copies of songs that were otherwise difficult to obtain, such as older songs, unreleased recordings, studio recordings, and songs from concert bootleg recordings. Napster paved the way for streaming media services and transformed music into a public good for a brief period of time.

High-speed networks in college dormitories became overloaded, with as much as 61% of external network traffic consisting of MP3 file transfers.[8] Many colleges blocked its use for this reason,[9] even before concerns about liability for facilitating copyright violations on campus.

Macintosh version

The service and software program began as Windows-only. However, in 2000, Black Hole Media wrote a Macintosh client called Macster. Macster was later bought by Napster and designated the official Mac Napster client ("Napster for the Mac"), at which point the Macster name was discontinued.[10] Even before the acquisition of Macster, the Macintosh community had a variety of independently developed Napster clients. The most notable was the open source client called MacStar, released by Squirrel Software in early 2000, and Rapster, released by Overcaster Family in Brazil.[11] The release of MacStar's source code paved the way for third-party Napster clients across all computing platforms, giving users advertisement-free music distribution options.

Legal challenges

Heavy metal band Metallica discovered a demo of their song "I Disappear" had been circulating across the network before it was released. This led to it being played on several radio stations across the United States, which alerted Metallica to the fact that their entire back catalogue of studio material was also available. On March 13, 2000, they filed a lawsuit against Napster. A month later, rapper and producer Dr. Dre, who shared a litigator and legal firm with Metallica, filed a similar lawsuit after Napster refused his written request to remove his works from its service. Separately, Metallica and Dr. Dre later delivered to Napster thousands of usernames of people who they believed were pirating their songs. In March 2001, Napster settled both suits, after being shut down by the Ninth Circuit Court of Appeals in a separate lawsuit from several major record labels (see below).[12] In 2000, Madonna's single "Music" was leaked out onto the web and Napster prior to its commercial release, causing widespread media coverage.[13] Verified Napster use peaked with 26.4 million users worldwide in February 2001.[14]

In 2000, the American musical recording company A&M Records along with several other recording companies, through the Recording Industry Association of America (RIAA), sued Napster (A&M Records, Inc. v. Napster, Inc.) on grounds of contributory and vicarious copyright infringement under the US Digital Millennium Copyright Act (DMCA).[15] Napster was faced with the following allegations from the music industry:

1. That its users were directly violating the plaintiffs' copyrights.
2. That Napster was responsible for contributory infringement of the plaintiffs' copyrights.
3. That Napster was responsible for vicarious infringement of the plaintiffs' copyrights.

Napster lost the case in the District Court but then appealed to the U.S. Court of Appeals for the Ninth Circuit. Although it was clear that Napster could have commercially significant non-infringing uses, the Ninth Circuit upheld the District Court's decision. Immediately after, the District Court commanded Napster to keep track of the activities of its network and to restrict access to infringing material when informed of that material's location. Napster wasn't able to comply and thus had to close down its service in July 2001. In 2002, Napster announced that it had filed for bankruptcy and sold its assets to a third party.[16] In a 2018 Rolling Stone article, Kirk Hammett of Metallica upheld the band's opinion that suing Napster was the "right" thing to do.[17]

Promotional power

Along with the accusations that Napster was hurting the sales of the record industry, there were those who felt just the opposite, that file trading on Napster stimulated, rather than hurt, sales. Some evidence may have come in July 2000 when tracks from English rock band Radiohead's album Kid A found their way to Napster three months before the album's release. Unlike Madonna, Dr. Dre or Metallica, Radiohead had never hit the top 20 in the US. Furthermore, Kid A was an album without any singles released, and received relatively little radio airplay. By the time of the album's release, the album was estimated to have been downloaded for free by millions of people worldwide, and in October 2000 Kid A captured the number one spot on the Billboard 200 sales chart in its debut week. According to Richard Menta of MP3 Newswire,[18] the effect of Napster in this instance was isolated from other elements that could be credited for driving sales, and the album's unexpected success suggested that Napster was a good promotional tool for music.

Since 2000, many musical artists, particularly those not signed to major labels and without access to traditional mass media outlets such as radio and television, have said that Napster and successive Internet file-sharing networks have helped get their music heard, spread word of mouth, and may have improved their sales in the long term[citation needed]. One such musician to publicly defend Napster as a promotional tool for independent artists was DJ Xealot, who became directly involved in the 2000 A&M Records Lawsuit.[19] Chuck D from Public Enemy also came out and publicly supported Napster.[20]

Lawsuit

Main article: A&M Records, Inc. v. Napster, Inc.

Napster's facilitation of transfer of copyrighted material raised the ire of the Recording Industry Association of America (RIAA), which almost immediately—on December 6, 1999—filed a lawsuit against the popular service.[21] The service would only get bigger as the trial, meant to shut down Napster, also gave it a great deal of publicity. Soon millions of users, many of whom were college students, flocked to it. After a failed appeal to the Ninth Circuit Court, an injunction was issued on March 5, 2001 ordering Napster to prevent the trading of copyrighted music on its network.[22]

Lawrence Lessig[23] claimed, however, that this decision made little sense from the perspective of copyright protection: "When Napster told the district court that it had developed a technology to block the transfer of 99.4 percent of identified infringing material, the district court told counsel for Napster 99.4 percent was not good enough. Napster had to push the infringements 'down to zero.' If 99.4 percent is not good enough," Lessig concluded, "then this is a war on file-sharing technologies, not a war on copyright infringement."

Shutdown

On July 11, 2001, Napster shut down its entire network in order to comply with the injunction. On September 24, 2001, the case was partially settled. Napster agreed to pay music creators and copyright owners a $26 million settlement for past, unauthorized uses of music, and as an advance against future licensing royalties of $10 million. In order to pay those fees Napster attempted to convert its free service into a subscription system, and thus traffic to Napster was reduced. A prototype solution was tested in 2002: the Napster 3.0 Alpha, using the ".nap" secure file format from PlayMedia Systems[24] and audio fingerprinting technology licensed from Relatable. Napster 3.0 was, according to many former Napster employees, ready to deploy, but it had significant trouble obtaining licenses to distribute major-label music. On May 17, 2002, Napster announced that its assets would be acquired by German media firm Bertelsmann for $85 million with the goal of transforming Napster into an online music subscription service. The two companies had been collaborating since the middle of 2000[25] where Bertelsmann became the first major label to drop its copyright lawsuit against Napster.[26] Pursuant to the terms of the acquisition agreement, on June 3 Napster filed for Chapter 11 protection under United States bankruptcy laws. On September 3, 2002, an American bankruptcy judge blocked the sale to Bertelsmann and forced Napster to liquidate its assets.[6]

Third-party clients

After official Napster client takedown, multiple third-party client and server implementations continued working and supporting Napster network. These include OpenNap and TekNap.[citation needed]

Reuse of name

Main article: Napster (streaming music service)

Napster's brand and logos were acquired at bankruptcy auction by Roxio which used them to re-brand the Pressplay music service as Napster 2.0. In September 2008, Napster was purchased by US electronics retailer Best Buy for US $121 million.[27] On December 1, 2011, pursuant to a deal with Best Buy, Napster merged with Rhapsody, with Best Buy receiving a minority stake in Rhapsody.[28] On July 14, 2016, Rhapsody phased out the Rhapsody brand in favor of Napster and has since branded its service internationally as Napster[29]and expanded toward other markets by providing music on-demand as a service to other brands[30] like the iHeartRadio app and their All Access music subscription service that provides subscribers with an on-demand music experience as well as premium radio.[31]

On August 25, 2020, Napster was sold to virtual reality concerts company MelodyVR.[32]

On May 10, 2022, Napster was sold to Hivemind and Algorand. The investor consortium also includes ATC Management, BH Digital, G20 Ventures, SkyBridge, RSE Ventures, Arrington Capital, Borderless Capital and others.[33][34]

• There have been several books that document the experiences of people working at Napster, including:
  • Joseph Menn's Napster biography
  • All the Rave: The Rise and Fall of Shawn Fanning's Napster[35]
  • John Alderman's "Sonic Boom: Napster, MP3, and the New Pioneers of Music"[36]
  • Steve Knopper's "Appetite for Self Destruction: The Spectacular Crash of the Record Industry in the Digital Age."[37]
• The 2003 film The Italian Job features Napster co-founder Shawn Fanning as a cameo of himself. This gave credence to one of the characters fictional back-story as the original "Napster".[38]
• The 2010 film The Social Network features Napster co-founder Sean Parker (played by Justin Timberlake) in the rise of the popular website Facebook.[39]
• The 2013 film Downloaded is a documentary about sharing media on the Internet and includes the history of Napster.

• Album era
• Gnutella
• BitTorrent
• Napster (streaming music service)
• Snocap

• Carlsson, Bengt; Gustavsson, Rune (2001). "The Rise and Fall of Napster – An Evolutionary Approach". Proceedings of the 6th International Computer Science Conference on Active Media Technology.
• Giesler, Markus; Pohlmann, Mali (2003). "The Social Form of Napster: Cultivating the Paradox of Consumer Emancipation". Advances in Consumer Research.
• Giesler, Markus; Pohlmann, Mali (2003). "The Anthropology of File Sharing: Consuming Napster as a Gift". Advances in Consumer Research.
• Giesler, Markus (2006). "Consumer Gift Systems". Journal of Consumer Research. 33 (2): 283–290. doi:10.1086/506309.
• Green, Matthew (2002). "Napster Opens Pandora's Box: Examining How File-Sharing Services Threaten the Enforcement of Copyright on the Internet". Ohio State Law Journal. 63: 799.
• InsightExpress. 2000. Napster and its Users Not violating Copyright Infringement Laws, According to a Survey of the Online Community.
• Ku, Raymond Shih Ray (2001). "The Creative Destruction of Copyright: Napster and the New Economics of Digital Technology". University of Chicago Law Review. doi:10.2139/ssrn.266964. SSRN 266964.
• McCourt, Tom; Burkart, Patrick (2003). "When Creators, Corporations and Consumers Collide: Napster and the Development of On-line Music Distribution". Media, Culture & Society. 25 (3): 333–350. doi:10.1177/0163443703025003003. S2CID 153739320.
• Orbach, Barak (2008). "Indirect Free Riding on the Wheels of Commerce: Dual-Use Technologies and Copyright Liability". Emory Law Journal. 57: 409–461. SSRN 965720.
• Abramson, Bruce (2005). Digital Phoenix; Why the Information Economy Collapsed and How it Will Rise Again. MIT Press. ISBN 978-0-262-51196-4.
• Judge criticises both parties in Napster case
• "The File Sharing Movement" in Jack Goldsmith and Tim Wu, Who Controls the Internet: Illusions of a Borderless World Oxford University Press, 2006, pp. 105–125. ISBN 978-0-19-515266-1

1. ^ Sisario, Ben (2011-10-03). "Rhapsody to Acquire Napster in Deal With Best Buy". Mediadecoder.blogs.nytimes.com. United States. Retrieved 2013-06-13.
2. ^ "We Are Napster". Napster. 2016-07-14. Retrieved 2022-06-13.
3. ^ Name inspired by Shawn's high school nickname "Nappy" for his signature Afro.
   • Pollack, Neal (December 27, 2010). "Spotify Is the Coolest Music Service You Can't Use". Wired.
   • Simon, Dan. Internet pioneer Sean Parker: 'I'm blazing a new path' Archived May 10, 2012, at the Wayback Machine. CNN. September 27, 2011.
   • Menn, Joseph (2003). All the Rave: The Rise and Fall of Shawn Fanning's Napster. Crown Business. ISBN 978-0-609-61093-0.
   • Schonfeld, Erick. Shawn Fanning And Sean Parker Talk About Airtime And "Smashing People Together". TechCrunch. October 6, 2011.
   • Rosen, Ellen (May 26, 2005). "Student's Start-Up Draws Attention and $13 Million". The New York Times.
   • Bradshaw, Tim. Spotify-MOG battle heats up. Financial Times. February 28, 2010.
   • Emerson, Ramona. Sean Parker At Web 2.0 Summit Defends 'Creepy' Facebook. The Huffington Post. October 18, 2011.
   • Kirkpatrick, David (October 2010). "With a Little Help From His Friends". Vanity Fair. Retrieved July 1, 2011.
4. ^ "Napster's High and Low Notes". Businessweek. August 14, 2000.
5. ^ *Giesler, Markus (2006). "Consumer Gift Systems". Journal of Consumer Research. 33 (2): 283–290. doi:10.1086/506309.
6. ^ a b Evangelista, Benny (September 4, 2002). "Napster runs out of lives – judge rules against sale". San Francisco Chronicle. Retrieved October 18, 2011.
7. ^ Gowan, Michael (2002-05-18). "Requiem for Napster". Pcworld.com. Retrieved 2013-06-13.
8. ^ Fusco, Patricia (March 13, 2000). "The Napster Nightmare". ISP-Planet. Archived from the original on 2011-10-19.
9. ^ Anderson, Kevin (September 26, 2000). "Napster expelled by universities". BBC News. Archived from the original on 2007-10-21.
10. ^ "Official Napster Client For Mac OS, OS X -- The Mac Observer". macobserver.com.
11. ^ Moore, Charles W. "Eight MP3 Players For The Macintosh". Applelinks. Archived from the original on November 12, 2013. Retrieved April 26, 2014.
12. ^ Giesler, Markus (2008). "Conflict and Compromise: Drama in Marketplace Evolution" (PDF). Journal of Consumer Research. 34 (6): 739–753. CiteSeerX 10.1.1.564.7146. doi:10.1086/522098. S2CID 145796529. Archived from the original (PDF) on 2008-07-24. Retrieved 2017-10-25.
13. ^ Borland, John (June 1, 2000). "Unreleased Madonna Single Slips On To Net". CNET News.com. Archived from the original on June 28, 2012.
14. ^ "GLOBAL NAPSTER USAGE PLUMMETS, BUT NEW FILE-SHARING ALTERNATIVES GAINING GROUND, REPORTS JUPITER MEDIA METRIX" (Press release). comScore. 2001-07-20. Archived from the original on 2008-04-13. Retrieved April 26, 2014.
15. ^ 17 U.S.C. A&M Records. Inc. v. Napster. Inc. 114 F. Supp. 2d 896 (N. D. Cal. 2000).
16. ^ .A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). For a summary and analysis, see Guy Douglas, Copyright and Peer-To-Peer Music File Sharing: The Napster Case and the Argument Against Legislative Reform
17. ^ "Metallica's Kirk Hammett: 'We're Still Right' About Suing Napster". Rolling Stone. 2018-05-14. Retrieved 16 October 2019.
18. ^ Menta, Richard (October 28, 2000). "Did Napster Take Radiohead's New Album to Number 1?". MP3 Newswire. Archived from the original on January 4, 2018. Retrieved January 21, 2005.
19. ^ "Case Nos. C 99-5183 and C 00-0074 MHP (ADR)" (PDF). FindLaw.com. Retrieved February 12, 2009.
20. ^ "Rapper Chuck D throws weight behind Napster". Cnet News. May 1, 2000.
21. ^
    • A&M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896 (N.D. Cal. 2000), aff'd in part, rev'd in part, 239 F.3d 1004 (9th Cir. 2001)
    • Menta, Richard (December 9, 1999). "RIAA Sues Music Startup Napster for $20 Billion". MP3 Newswire.
22. ^ 2001 US Dist. LEXIS 2186 (N.D. Cal. Mar. 5, 2001), aff’d, 284 F. 3d 1091 (9th Cir. 2002).
23. ^ Lessig, Lawrence (2004). Free Culture: The Nature and Future of Creativity. Penguin. pp. 73–74. ISBN 978-0-14-303465-0.
24. ^ "Napster to ditch MP3 for proprietary format". theregister.co.uk.
25. ^ "Bertelsmann to buy Napster for a song". CNET. Retrieved 2016-02-29.
26. ^ Teather, David; correspondent, media business (2000-11-01). "Napster wins new friend". The Guardian. ISSN 0261-3077. Retrieved 2016-02-29.
27. ^ Skillings (September 15, 2008). "Best Buy nabs Napster for $121 million". cnet.com. CNET. Retrieved January 4, 2016.
28. ^ "Today is Napster's last day of existence". CNN. November 30, 2011.
29. ^ "We Are Napster". Napster Team. July 14, 2016.
30. ^ "Services | Napster". Napster. Retrieved 2018-03-27.
31. ^ "Press Releases". www.iheartmedia.com. Retrieved 2018-03-27.
32. ^ "Napster Sold to Virtual Reality Concert App MelodyVR for $70 Million". Billboard. 2020-08-25. Retrieved 2020-08-26.
33. ^ "Hivemind and Algorand today announced the acquisition of Napster, to once again revolutionize the music industry by bringing blockchain and Web3 to artists and fans". Linkedin. 2022-05-10. Retrieved 2022-05-10.
34. ^ "BREAKING: @HivemindCap and @Algorand today announced the acquisition of @Napster , to once again revolutionize the music industry by bringing blockchain and Web3 to artists and fans. Music industry veteran Emmy Lovell has been named interim CEO". Twitter. 2022-05-10. Retrieved 2022-05-10.
35. ^ Menn, Joseph (2003). "All the Rave: The Rise and Fall of Shawn Fanning's Napster". ISBN 0609610937.
36. ^ John Alderman (August 8, 2001). Sonic boom: Napster, MP3, and the new pioneers of music. Perseus Pub. ISBN 978-0-7382-0405-5. Retrieved January 29, 2011.
37. ^ Napster wounds the giant : Music Archived 2009-06-01 at the Wayback Machine. The Rocky Mountain News (January 5, 2009). Retrieved on January 29, 2011.
38. ^ News, InfoSec. "Information Security News: Napster founder has cameo role in 'Italian Job'". seclists.org. Retrieved 2018-03-27. {{cite web}}: |last= has generic name (help)
39. ^ Kirkpatrick, David. With a Little Help From His Friends. Vanity Fair. October 2010.

• Official website in 2011 on archive.org

The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is a federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts:

• District of Alaska
• District of Arizona
• Central District of California
• Eastern District of California
• Northern District of California
• Southern District of California
• District of Hawaii
• District of Idaho
• District of Montana
• District of Nevada
• District of Oregon
• Eastern District of Washington
• Western District of Washington

(San Francisco, California)

More locations

• William Kenzo Nakamura U.S. Courthouse

  (Seattle, Washington)

• Pioneer Courthouse

  (Portland, Oregon)

• Richard H. Chambers U.S. Court of Appeals

  (Pasadena, California)

• District of Alaska
• District of Arizona
• Central District of California
• Eastern District of California
• Northern District of California
• Southern District of California
• District of Hawaii
• District of Idaho
• District of Montana
• District of Nevada
• District of Oregon
• Eastern District of Washington
• Western District of Washington
• District of Guam
• District of the Northern Mariana Islands

It also has appellate jurisdiction over the following territorial courts:

• District of Guam
• District of the Northern Mariana Islands

Additionally, it sometimes handles appeals that originate from American Samoa, which has no district court and partially relies on the District of Hawaii for its federal cases.[1]

Headquartered in San Francisco, California, the Ninth Circuit is by far the largest of the thirteen courts of appeals, covering a total of 9 states and 2 territories and with 29 active judgeships. The court's regular meeting places are Seattle at the William Kenzo Nakamura United States Courthouse, Portland at the Pioneer Courthouse, San Francisco at the James R. Browning U.S. Court of Appeals Building, and Pasadena at the Richard H. Chambers U.S. Court of Appeals.

Panels of the court occasionally travel to hear cases in other locations within the circuit. Although the judges travel around the circuit, the court arranges its hearings so that cases from the northern region of the circuit are heard in Seattle or Portland, cases from southern California and Arizona are heard in Pasadena, and cases from northern California, Nevada, Hawaii, and the Pacific territories are heard in San Francisco. Additionally, the court holds yearly sittings in Anchorage and Honolulu. For lawyers who must come and present their cases to the court in person, this administrative grouping of cases helps to reduce the time and cost of travel. Ninth Circuit judges are also appointed by the United States Secretary of the Interior to serve as temporary acting Associate Justices for non-federal appellate sessions at the High Court of American Samoa in Fagatogo.[1]

The Ninth Circuit's large size is due to the dramatic increases in both the population of the western states and the court's geographic jurisdiction that have occurred since the U.S. Congress created the Ninth Circuit in 1891.[2] The court was originally granted appellate jurisdiction over federal district courts in California, Idaho, Montana, Nevada, Oregon, and Washington. As new states and territories were added to the federal judicial hierarchy in the twentieth century, many of those in the West were placed in the Ninth Circuit: the newly acquired Territory of Hawaii in 1900, Arizona upon its admission to the Union in 1912, the Territory of Alaska in 1948, Guam in 1951, and the Commonwealth of the Northern Mariana Islands in 1977.

The Ninth Circuit also had jurisdiction over certain American interests in China, in that it had jurisdiction over appeals from the United States Court for China during the existence of that court from 1906 through 1943.[3][fn 1]

However, the Philippines was never under the Ninth Circuit's jurisdiction. Congress never created a federal district court in the Philippines from which the Ninth Circuit could hear appeals. Instead, appeals from the Supreme Court of the Philippines were taken directly to the Supreme Court of the United States.[4]

In 1979, the Ninth Circuit became the first federal judicial circuit to set up a Bankruptcy Appellate Panel as authorized by the Bankruptcy Reform Act of 1978.

The cultural and political jurisdiction of the Ninth Circuit is just as varied as the land within its geographical borders. In a dissenting opinion in a rights of publicity case involving the Wheel of Fortune star Vanna White, Circuit Judge Alex Kozinski sardonically noted that "[f]or better or worse, we are the Court of Appeals for the Hollywood Circuit."[5] Judges from more remote parts of the circuit note the contrast between legal issues confronted by populous states such as California and those confronted by rural states such as Alaska, Idaho, Montana, and Nevada.

Judge Andrew J. Kleinfeld, who maintains his judicial chambers in Fairbanks, Alaska, wrote in a letter in 1998: "Much federal law is not national in scope....It is easy to make a mistake construing these laws when unfamiliar with them, as we often are, or not interpreting them regularly, as we never do."[6]

From 1999 to 2008, of the Ninth Circuit Court rulings that were reviewed by the Supreme Court, 20% were affirmed, 19% were vacated, and 61% were reversed; the median reversal rate for all federal appellate courts was 68.29% for the same period.[7] From 2010 to 2015, of the cases it accepted to review, the Supreme Court reversed around 79% of the cases from the Ninth Circuit, ranking its reversal rate third among the circuits; the median reversal rate for all federal circuits for the same time period was around 70 percent.[8]

Some argue the court's high percentage of reversals is illusory, resulting from the circuit hearing more cases than the other circuits. This results in the Supreme Court reviewing a smaller proportion of its cases, letting stand the vast majority of its cases.[9][10]

However, a detailed study in 2018 reported by Brian T. Fitzpatrick, a law professor at Vanderbilt University, looked at how often a federal circuit court was reversed for every thousand cases it terminated on the merits between 1994 and 2015.[11] The study found that the Ninth Circuit's decisions were reversed at a rate of 2.50 cases per thousand, which was by far the highest rate in the country, with the Sixth Circuit second as 1.73 cases per thousand.[12][11] Fitzgerald also noted that the 9th Circuit was unanimously reversed more than three times as often as the least reversed circuits and over 20% more often than the next closest circuit.[11]

Many commentators have argued that the Ninth Circuit faces several adverse consequences of its large size,[13] such as "unwieldly size, procedural inefficiencies, jurisprudential unpredictability, and unusual en banc process."[14]

Chief among these is the Ninth Circuit's unique rules concerning the composition of an en banc court. In other circuits, en banc courts are composed of all active circuit judges, plus (depending on the rules of the particular court) any senior judges who took part in the original panel decision. By contrast, in the Ninth Circuit it is impractical for 29 or more judges to take part in a single oral argument and deliberate on a decision en masse. The court thus provides for a limited en banc review by the Chief Judge and a panel of 10 randomly selected judges.[15] This means that en banc reviews may not actually reflect the views of the majority of the court and indeed may not include any of the three judges involved in the decision being reviewed in the first place. The result, according to detractors, is a high risk of intracircuit conflicts of law where different groupings of judges end up delivering contradictory opinions. That is said to cause uncertainty in the district courts and within the bar. However, en banc review is a relatively rare occurrence in all circuits and Ninth Circuit rules provide for full en banc review in limited circumstances.[16]

All recently proposed splits would leave at least one circuit with 21 judges, only two fewer than the 23 that the Ninth Circuit had when the limited en banc procedure was first adopted. In other words, after a split at least one of the circuits would still be using limited en banc courts.[17]

In March 2007, Associate Justices Anthony Kennedy and Clarence Thomas testified before a House Appropriations subcommittee that the consensus among the justices of the Supreme Court of the United States was that the Ninth Circuit was too large and unwieldy and should be split.[18]

Congressional officials, legislative commissions, and interest groups have all submitted proposals to divide the Ninth Circuit such as:

• Ninth Circuit Court of Appeals Reorganization Act of 1993, H.R. 3654[19]
• Final Report of the Commission on Structural Alternatives for the Federal Courts of Appeals[20]
• Ninth Circuit Court of Appeals of Reorganization Act of 2003, S. 562
• Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2003, H.R. 2723
• Ninth Circuit Judgeship and Reorganization Act of 2004, S. 878 (reintroduced as the Ninth Circuit Judgeship and Reorganization Act of 2005, H.R. 211, and co-sponsored by House Majority Leader Tom DeLay)
• Circuit Court of Appeals Restructuring and Modernization Act of 2005, S. 1845[21]
• Circuit Court of Appeals Restructuring and Modernization Act of 2007, S. 525[22]
• Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2017, H.R. 196[23]

The more recent proposals have aimed to redefine the Ninth Circuit to cover California, Hawaii, Guam, and the Northern Mariana Islands, and to create a new Twelfth Circuit to cover Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington.

As of January 24, 2022[update]:

Chief judges have administrative responsibilities with respect to their circuits, and preside over any panel on which they serve unless the circuit justice (i.e., the Supreme Court justice responsible for the circuit) is also on the panel. Unlike the Supreme Court, where one justice is specifically nominated to be chief, the office of chief judge rotates among the circuit judges. To be chief, a judge must have been in active service on the court for at least one year, be under the age of 65, and have not previously served as chief judge. A vacancy is filled by the judge highest in seniority among the group of qualified judges. The chief judge serves for a term of seven years or until age 70, whichever occurs first. The age restrictions are waived if no members of the court would otherwise be qualified for the position.

When the office was created in 1948, the chief judge was the longest-serving judge who had not elected to retire on what has since 1958 been known as senior status or declined to serve as chief judge. After August 6, 1959, judges could not become or remain chief after turning 70 years old. The current rules have been in operation since October 1, 1982.

The court has 29 seats for active judges, numbered in the order in which they were initially filled. Judges who assume senior status enter a kind of retirement in which they remain on the bench, while vacating their seats, thus allowing the U.S. President to appoint new judges to fill their seats.

• Courts of California
• Ninth Circuit appointment history
• List of current United States Circuit Judges
• Same-sex marriage in the Ninth Circuit

1. ^ a b c The population of China is not included in the chart for 1912 or 1940, since the Court for China lacked plenary jurisdiction over China's domestic population, then numbering about 430 million people; the court exercised only extraterritorial jurisdiction over the relatively small number of American citizens in China.

1. ^ a b //www.gao.gov/products/GAO-08-1124T GAO (U.S. Government Accountability Office. AMERICAN SAMOA: Issues Associated with Some Federal Court Options. September 18, 2008. Retrieved September 7, 2019.
2. ^ Frederick, David C. (1994). Rugged justice: the Ninth Circuit Court of Appeals and the American West, 1891–1941. University of California Press. ISBN 9780520083813.
3. ^ See, e.g., Republic of China v. Merchants' Fire Ass'n of N.Y., 49 F.2d 862 (9th Cir. 1931). As the court noted, this bizarre insurance claim dispute arose directly from the "perplexing" civil war during China's warlord era, in which various groups of military officers claimed to be the representatives of the Republic's legitimate government.
4. ^ Kepner v. United States, 195 U.S. 100 (1904).
5. ^ White v. Samsung Elec. Am., Inc., 989 F.2d 1512, 1521 (9th Cir. 1993) (Kozinski, J., dissenting).
6. ^ Kleinfeld, Andrew J. (May 22, 1998). Memo to the Commission on Structural Alternatives for the Federal Courts of Appeals. URL Retrieved June 21, 2005.
7. ^ Landslide, Volume 2, Number 3, January/February 2010 by the American Bar Association.
8. ^ Carroll, Lauren (February 10, 2017). "No, the 9th Circuit isn't the 'most overturned court in the country,' as Hannity says". PolitiFact.
9. ^ Farris, Jerome, The Ninth Circuit—Most Maligned Circuit in the Country Fact or Fiction? 58 Ohio St. L.J. 1465 (1997) (noting that, in 1996, the Supreme Court let stand 99.7 percent of the Ninth Circuit's cases).
10. ^ Williams, Carol J. (July 18, 2011). "U.S. Supreme Court again rejects most decisions by the U.S. 9th Circuit Court of Appeals". Los Angeles Times. Retrieved August 4, 2012.
11. ^ a b c Fitzpatrick, Brian (July 31, 2018). "Written Testimony at Hearing on Oversight of the Structure of the Federal Courts" (PDF). United States Senate Committee on the Judiciary. Retrieved June 12, 2019.
12. ^ Qiu, Linda (November 26, 2018). "Does the Ninth Circuit Have the Highest Reversal Rate in the Country?". New York Times. Retrieved June 12, 2019.
13. ^ O'Scannlain, Diarmuid (October 2005). "Ten Reasons Why the Ninth Circuit Should Be Split" (PDF). Engage. 6 (2): 58–64. Archived from the original (PDF) on September 24, 2015. Retrieved May 29, 2006.
14. ^ Shapiro, Ilya; Harvey, Nathan (2019). "Break Up the Ninth Circuit". George Mason Law Review. 26 (4): 1299–1329.
15. ^ Rule 35–3 //cdn.ca9.uscourts.gov/datastore/uploads/rules/frap.pdf
16. ^ "Statement of Circuit Judge Alex Kozinski to the House Judiciary Subcommittee on Courts". U.S. House of Representatives. October 21, 2003. Archived from the original on September 26, 2012. Retrieved February 6, 2012.
17. ^ Schroeder, Mary M.; et al. (April 2006). "A Court United: A Statement of a Number of Ninth Circuit Judges" (PDF). Engage. 7 (1): 63–66. Retrieved June 6, 2006.
18. ^ "America and the Courts," 48:28. C-SPAN, March 17, 2007.
19. ^ Gribbin, Eric J. "47 Duke L.J. 351" (PDF). law.duke.edu.
20. ^ Final Report, Commission on Structural Alternatives for the Federal Courts of Appeals, December 18, 1998
21. ^ Testimony of Circuit Judge Richard Tallman: U.S. Court of Appeals for the Ninth Circuit, United States Senate: Committee on the Judiciary, October 26, 2005; retrieved November 19, 2007.
22. ^ Govtrack.us S. 525—110th Congress (2007): Circuit Court of Appeals Restructuring and Modernization Act of 2007 (database of federal legislation): govtrack.us; retrieved February 18, 2008.
23. ^ Govtrack.us; retrieved February 27, 2021,
24. ^ "Judicial Vacancies & Nominations". www.ca9.uscourts.gov. Retrieved November 1, 2021.
25. ^ David Lat [@DavidLat] (January 29, 2022). "1/ Judge Andrew Hurwitz announced on Friday that he will take senior status after June 27, upon confirmation of his successor. This gives President Biden another seat to fill on the Ninth Circuit, where he has already appointed 4 judges. #appellatetwitter" (Tweet) – via Twitter.
26. ^ "Ninth Circuit Chief Judge Emeritus Sidney R. Thomas to Take Senior Status" (PDF).
27. ^ Sawyer was appointed as a circuit judge for the Ninth Circuit in 1869 by Ulysses S. Grant. The Judiciary Act of 1891 reassigned his seat to what is now the U.S. Court of Appeals for the Ninth Circuit.
28. ^ Hunt did not have a permanent seat on this court. Instead, he was appointed to the ill-fated United States Commerce Court in 1911 by William Howard Taft. Aside from their duties on the Commerce Court, the judges of the Commerce Court also acted as at-large appellate judges, able to be assigned by the Chief Justice of the United States to whichever circuit most needed help. Hunt was assigned to the Ninth Circuit upon his commission.
29. ^ Recess appointment not confirmed
30. ^ President Coolidge first nominated Wilbur for the judgeship in the final days of his presidency, but the Senate failed to act on it before the 70tb Congress ended on March 3, 1929. "Wilbur Nominated for Judge Post," Woodland Daily Democrat, March 1, 1929 at p. 1 (noting, as the Coolidge Administration ended, that Coolidge nominated Wilbur for the new judgeship); "Sentence Cut Out by Hoover," Oakland Tribune, 1929-03-04, Section D, p. 1 (noting that the Wilbur nomination was not acted upon before the 70th Congress ended). Hoover then resubmitted the nomination to the Senate in the 71st Congress, which approved it.
31. ^ Court Security Improvement Act of 2007, Pub. L. 110–177 § 509(a)(2), 121 Stat. 2534, 2543, January 7, 2008

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