SAN FRANCISCO — Napster wrangled in court Friday with record industry attorneys over exactly how an injunction against the song-swapping service would work, and who should bear the heavy burden of detailing exactly what music to keep off the service.
Attorneys for the popular file-sharing company said they are trying to comply with an upcoming injunction from a federal judge. As a show of good faith toward record labels, Napster announced it will begin a new screening technology this weekend to block access to 1 million files – as requested by several record labels and the artists Metallica and Dr. Dre.
“Some time this weekend, we will have completed the software implementation so that those filenames will be blocked,” Napster attorney David Boies told the court. “We have a group of people at Napster working night and day to develop a system to block access to these files.”
Attorneys for record labels suing Napster for copyright infringement urged U.S. District Judge Marilyn Hall Patel to include in her injunction instructions that Napster has to preemptively program its system to block access to a much greater number of songs from various music catalogs, even without proof that those songs had actually been or were being traded on the system.
Otherwise, pre-released recordings such as advance copies of Madonna’s latest album sent to music reviewers could be traded via Napster and obtained illegally by music fans.
“What’s the harm to Napster if we tell them ahead of time, two weeks, three weeks, that we’re coming out with Madonna’s album – and block it,” asked recording industry attorney Russell Frackman.
Frackman also suggested that Napster should start by blocking the swapping of Billboard Top 100 singles and Top 200 albums and by policing its system to keep those lists current.
Napster said that burden should be more equally shared between the two parties, and asked the judge to tailor her injunction forcing the record labels to limit their notice only to files that had actually appeared on Napster’s index of available songs
The new screening technology would be bogged down by such voluminous requests, Boies argued.
“If you’re talking about a large number of songs, and clearly they are, the more that is imposed on this screen, the larger the screen becomes. And the system becomes degraded,” Boies said.
Patel recessed the three-hour hearing without issuing an injunction, but said that one would be forthcoming.
Napster said its new technology effectively would block searches for the material identified by copyright holders, by programming the material into the screening system by song name and artist name.
The recording industry wasn’t impressed by the technology, and said better digital watermarking and fingerprinting methods of identifying music were available, and charged that Napster was selectively deciding not to employ them.
“They are picking the worst way to filter out these recordings,” Frackman said, suggesting Napster could more finely tune the service for better results in weeding out MP3 files.
“It’s their system. They know what happens there,” Frackman said.
Hilary Rosen, president of the Recording Industry Association of America, said that she will take Napster on its word that it is trying to develop a method to comply with the issues raised by the 9th U.S. Circuit Court of Appeals’ instructions for a more focused injunction.
But she added that Napster’s latest technology was only a start.
“We think that the screening technology has the potential to be effective, but we’ll see,” Rosen said.
In mid-February, an appeals court ordered Patel to rewrite her July order in a way that may allow Napster to survive — albeit in a much more inhibited way.
Napster users were downloading with a vengeance Friday morning as the court hearing began. More than 8,500 people were sharing more than 1.7 million files through just one of Napster’s more than 50 servers.
These Napster machines could be shut down by Patel, but many others are beyond her immediate reach. As of 10 a.m., more than 164 million files were being shared by nearly 700,000 people on Napster-like servers, many of which are based in foreign countries including Italy, New Zealand and Russia, according to Napigator Web site, which tracks such computers.
Napster’s popularity exploded in 1999 after founder Shawn Fanning released software making it easy for personal computer users to locate and trade songs stored as computer files in the MP3 format, which compresses digital recordings without sacrificing quality.
The five largest record labels — Sony, Warner, BMG, EMI and Universal — quickly sued, saying Napster could rob them of billions of dollars in profits. But the concept of peer-to-peer song trading proved wildly popular, as millions flocked to Napster and similar services.
Music fans downloaded 2.7 billion files in January using Napster, and research firm Webnoize said more than 96 million songs were traded on Feb. 12 — the day the appellate court said Napster likely would lose at trial. Accenture, another research firm, predicts that by 2005, the digital music market will grow to $3.2 billion, or 15 percent of overall music sales.
Napster last week offered to settle for $1 billion — in exchange for a 40 percent cut of online music sales. The offer was soundly rejected by the recording industry, which is anticipating victory in the landmark case.
The RIAA sent out 85 letters last month asking Internet service providers to take down OpenNap servers — homegrown personal computers set up to facilitate Napster-like activity.
But OpenNap is just one of any number of networks where people can trade music without paying for it, and going after actual users could prompt a buyer backlash.
“They’ll have no choice but to sue their customers and they just can’t do that,” said Phil Leigh, an analyst with Raymond James & Associates. “It would be anarchy.”
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