Wednesday April 11, 10:20 am Eastern Time
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Napster's Sad Song Falls on Deaf Ears
By Ronna Abramson
File-sharing upstart Napster got an unsympathetic hearing in a San Francisco court Tuesday as a U.S. judge called the company's efforts to block unauthorized music on its service "disgraceful" and left open the possibility of shuttering the service.
"You better find a way to get this off the system," Judge Marilyn Hall Patel told Napster lawyer Robert Silver in response to the music industry's claim that 84 percent of the 6.000 titles record labels have asked Napster to block remain available on the system. "This is disgraceful."
"Maybe the system does need to be closed down," Patel told Silver in front of a crowded courtroom.
The Recording Industry Association of America, which represents the big music companies in their efforts to heel Napster, quickly praised Patel's comments.
"[Tuesday's] hearing reflects Judge Patel's determination to ensure that the court's injunction is obeyed and that Napster's infringing conduct comes to an end," RIAA general counsel Cary Sherman said in a release issued shortly after the hearing. "Napster would do well to do whatever it takes to come into compliance and then turn their full energies into launching a new, legitimate business."
The most concrete result of the three-hour hearing was Patel's support for a newly appointed technical expert to help resolve disputes over filtering between Napster and the recording industry, Silver said after the hearing. That expert, A.J. "Nick" Nichols, was one of three advisers who Napster recommended to the judge.
Nichols, who declined to comment Tuesday, has a Ph.D. in engineering from Stanford University and previously served as an adviser in a suit between Microsoft and Sun Microsystems. Patel expressed hope that he will help her better understand the technical solutions that Napster could be using to block songs, noting that she believes the company can be doing more and acting more quickly to filter copyrighted music.
Napster and the recording industry attorneys spent much of the hearing battling over the Redwood City, Calif.-based company's compliance with a modified injunction issued by Patel on March 5. Napster also is awaiting a decision on its request for a rehearing from the U.S. Court of Appeals for the 9th Circuit, which ruled in February that the company was infringing on copyrights and directed Patel to issue her injunction.
The recording industry has suggested that Napster's filters should search for copyrighted songs by using technology such as digital fingerprints to analyze the content of the MP3 files. Napster contends that it is not required to use such technology because, as the 9th Circuit Court of Appeals noted, it does not "read" the content of files other than to check that they are in the MP3 format.
Patel expressed frustration with Napster's assertion that the recording industry must provide not only artist and song names to be blocked, but also actual file names. She noted the problem that file names appear and disappear from the system as users log on and off.
But Silver maintained that Napster requires the file names to prioritize which material to block and to prevent overblocking, and he also suggested that the burden on the recording industry to provide such information is a "slight one."
Russell Frackman, an attorney representing the recording industry, rejected Napster's claim that file names are needed to prioritize. "They simply have to shoulder the burden [of satisfying the injunction], whatever it is," he said.
Patel appeared to agree with Frackman, pointing out that if the burden for naming file is so slight, why indeed can't Napster shoulder it. "You created this monster, you figure it out," she told Silver.
The hearing Tuesday came on the heels of a Senate Judiciary Committee hearing on digital music last week in Washington. As senators questioned the recording industry on its long-awaited attempts to provide music online, record labels announced numerous deals with the likes of Yahoo and AOL Time Warner to launch subscription music services capitalizing on the success of Napster's wildly popular free downloads. Napster already has said it will launch its own subscription service in July.
Given its plans to evolve into a paid service, it is in Napster's interest to hold on to as many users of its free service until the summer, observers note. Despite its filtering software, Napster enjoyed a rebound in usage in March, according to Webnoize. The online music research firm found that Napster users downloaded 593 million songs during the last week of March, or 25 percent more than the 473 million downloaded the previous week. "Millions of consumers continue to use Napster to access huge amounts of free music," said Webnoize analyst Matt Bailey.
In addition to Patel's hearing on Napster's compliance, she also considered two separate requests from artists and music publishers to give class-action status to their suits against Napster, which would increase the company's exposure to damages. Patel declined to rule on the certification but indicated more willingness to give class-action status to the publishers' suit than the music artists' suit. In addition to the record companies, publishers hold a copyright on music that has been freely traded on Napster. Artists, however, are a more difficult group to join together in a class, Patel noted, because they cross international borders and therefore bring in issues of not only U.S., but also international copyright law. "I'm not going to supervise the world," she said.
In a related matter, Patel considered requests to dismiss suits by Matthew Katz, who owns a record label called San Francisco Sound, against everyone from individuals such as Napster CEO Hank Barry to universities that he claims are allowing young people to share copyrighted music. Patel expressed skepticism about the cases and said she will issue an order on them.
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