| Napster ordered to block pirating Policing role shifts to record industry 03/07/2001 By Doug Bedell / The Dallas Morning News
The preliminary injunction posted Tuesday by U.S. District Judge Marilyn Hall Patel fell short of the judge's original order and the more-sweeping demands sought by major record labels and the Recording Industry Association of America. Instead of requiring Napster to police the activities of its more than 50 million users, Judge Patel ordered music industry representatives to assemble a list of artists, song titles and the specific file names under which songs are being illegally distributed. After that list is received, the judge said Napster has 72 hours to cleanse its service of the offending files. "As we receive notice from copyright holders as required by the court, we will take every step within the limits of our system to exclude their copyrighted material from being shared," said Harry Bank, chief executive officer of Napster. "We will continue to press our case in court and seek a mediated resolution even as we work to implement the court's order," Mr. Bank said. "We will continue to seek a settlement with the record companies and to prepare our new membership-based service that will make payments to artists, songwriters and other rights holders." The recording association had previously submitted to Napster a list of 5,600 songs to be blocked. But those titles were not banned by Napster because the list did not include all the information Napster said it required: title, artist, file name and certification describing the plaintiff's rights to the work. The judge's injunction includes no specific penalty for Napster if the company fails to follow through with this file-blocking order. However, the judge has previously decided that the recording association is likely to prevail in an upcoming trial and that damage to the industry would be "crippling" if Napster is allowed to continue in its current form. Napster already has posted a $5 million bond in the case. Addressing a loophole The music industry persuaded Judge Patel to include a clause in the injunction that recognizes the practice of misnaming, misspelling or scrambling the names of infringing MP3 files. Napster users have lately begun using Pig Latin and other coding techniques to avoid being banned from the worldwide music exchange if the music industry prevails. "If it is reasonable to believe that a file available on the Napster system is a variation of a particular work or file identified by plaintiffs, all parties have an obligation to ascertain the actual identity of the work and take appropriate action within the context of this order," the judge wrote. Recording association president Hilary Rosen greeted the order as a victory. "We are gratified the District Court acted so promptly in issuing its injunction requiring Napster to remove infringing works from its system," Ms. Rosen said in a prepared statement. "We intend to provide the notifications prescribed by the court expeditiously, and look forward to the end of Napster's infringing activity." Howard King, a lawyer representing heavy metal band Metallica and rapper-producer Dr. Dre in their $10 million suits against Napster, praised the ruling and said his clients have been eager to get their songs off Napster for a long time. "If Napster complies with what this injunction says, it will be to our satisfaction," Mr. King said. "It's technologically doable. The question is, is Napster going to go to the necessary steps to do it?" Napster began a screening system over the weekend in an effort to weed out copyrighted music. Although Napster officials say they have blocked about 1 million files from continued exchange, activity on the service Tuesday appeared unfettered. A search for MP3 files from Metallica turned up more than 500 titles available for download. As the injunction was being issued, 1.7 million files were being exchanged among more than 10,000 users. Most of the files are easily recognizable as copyrighted music. Users dismayed On Internet discussion boards and college campuses, Napster users once again voiced displeasure with the legal system. In Dallas, an e-commerce student at Richland College said he believed record companies were being greedy. "The advancement of technology and all sciences should be as free as the wind," Ruben Chapa said. "People have been recording copies of music for years." Mr. Chapa said he and many friends download older music on Napster – music that is no longer available in record stores. "The recording industry should find some other form of recording and protecting ownership," he said. If Napster moves to a subscription service this summer as planned, Mr. Chapa says he doubts he'll sign up. Instead, he said, he would prefer to pay by the download, an option that record companies have yet to widely offer. Figures from Webnoize, which monitors download traffic at Napster and other peer-to-peer services, showed download activity to be surging as a decision on the injunction neared. In February there were 2.79 billion downloads, an average of about 100 million downloads per day. Two weeks ago, when it appeared Napster could be permanently closed, Napster users completed about 250 million downloads. Experts expected a similar rush Tuesday night.
Gregor Rohda, a Webnoize.com researcher, said the injunction clearly gave Napster a temporary reprieve from much harsher punishment. "Napster doesn't have to jump in right away and say, 'OK, we've got to get everything off right now,'" Mr. Rohda said. Since the injunction makes the recording association and Napster jointly responsible for determining what files must be banned, Mr. Rohda said, Napster actually won a small concession. "It's much more to Napster's side than this has gone before," said Mr. Rohda, who attended hearings conducted by Judge Patel on Friday. The 9th U.S. Circuit Court of Appeals ruled last month that an original injunction against Napster issued by Judge Patel was too broad because it made Napster solely responsible for ensuring that no "copying, downloading, uploading, transmitting or distributing" of works occur. As for the immediate future of Napster, its legal battles are likely to drag on for some time, Mr. Rohda said. Mediation may be ordered, but it is doubtful that any consensus will emerge between the two parties, he said. "I really don't see this settling out of court," Mr. Rohda said. "The ... [recording association] simply is not interested in sitting down at the table with Napster." While this week's ruling may please record industry enforcers for the moment, Ted Stevenson, a Hughes & Luce intellectual property litigator, said stickier problems were cropping up across the Internet. For example, Matt Goyer – a young entrepreneur who runs the Fairtunes.com Web site from Canada – has begun openly soliciting funds "to set up an OpenNap server beyond the reach" of the recording association. Writing on his site, Mr. Goyer estimated that his venture would cost about $15,000, which he said he could easily raise from Napster users upset with the American record industry's tactics. "If 1,500 people chip in ... then it'd be completely possible to do it," Mr. Goyer wrote. "Fifteen hundred irate Napster users? We're sure we could find that many once the courts shut them down early next week." Said Mr. Stevenson: "History will likely view the Napster case as a Pyrrhic victory. Because of the ease with which offshore sites can be started, and moved, the recording industry may never be able to cost effectively police its copyrighted works. And, as bandwidth increases, the movie industry will face the same problem." In addition to variations on artist names and song titles, file-trading enthusiasts are busy developing other ways to get around normal MP3 file-naming conventions. Changes on the horizon A site called TimWilson.org features the MP3 Translator, which uses an algorithm to translate artist names and song titles into code. Metallica's "One" translates to VSNXSNUAR's "RKE." The user is then encouraged to rename the file and share it through Napster. An Israeli-based file-sharing mechanism, iMesh, uses a closed system that could not be policed by an outside agency like the recording association without breaking the very encryption laws it plans to use to protect its own offerings. And, adding to the morass, a new breed of emerging file-swapping services – including Freenet and Gnutella – employ a noncentralized method of file distribution. Without the ability to target a Napster-like directory, copyright enforcers may not be able to stop illegal trading even if it is rampant, experts say.
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