SAN FRANCISCO — A federal judge overseeing the case against Napster Inc. essentially threw up her hands and appealed for help Friday. For the moment, her memorandum guarantees Napster users can continue downloading copyright music at will.
The record labels want Napster to remove any copyright songs they identify on the song-swapping service, a position U.S. District Judge Marilyn Hall Patel has strongly endorsed in a series of rulings.
But removing the songs has proven exceptionally difficult, since Napster users constantly make them reappear under different file names, staying one step ahead of Napster’s efforts to remove songs.
Napster has said it can’t possibly keep up with every variation on its network, which Patel has described as an out-of-control “monster” that should be shut down entirely.
On Friday, however, Patel effectively acknowledged that unless an appellate court clarifies its ruling in the case, she can’t force Napster to identify and remove all those files.
In other words, for now, it remains the record labels’ burden to identify infringing songs on Napster’s ever-changing index of file names.
Patel invited the Recording Industry Association of America to “seek clarification in the court of appeals.”
The 9th U.S. Circuit Court of Appeals upheld Patel’s July order that Napster remove all copyrighted works from its file-swapping site, but with several key caveats. The appellate court said the record industry trade group must “provide notice to Napster of copyrighted works and files containing such works available on the Napster system before Napster has the duty to disable access to the offending content.”
Patel ruled Friday that the record labels’ interpretation, that they need not identify individual files, “requires reading more into the paragraph than the Ninth Circuit has made apparent.”
Napster’s interpretation: it has to screen out songs only after the record labels identify specific infringing files, along with proof of copyright ownership.
Napster recently began using Gracenote, a Berkeley, Calif.-based company that keeps a huge database of recorded music, to help screen songs. But Gracenote doesn’t compensate for changing song titles and artist name spellings that users twist to get around the screens.
For example, a search for the Beatles hit “Happiness Is A Warm Gun” returns no results in Napster’s search engine. But type in “Fab Four” as the artist and the song appears, along with many other Beatles hits.
Unless record labels can prove that a particular file name is infringing – in this example, that these individual “Fab Four” song files are really Beatles’ songs – Napster is not obligated to remove them.
The industry argues that it need only provide the artist and song name, not the thousands of files appearing on Napster’s indexes.
Patel also invited both sides to submit more technical guidance on how Napster might prevent newly released songs from appearing on the site, and noted that her own “neutral technology advisor,” A.J. Nichols, is studying the technological issues in the case.
“The court will reserve making any findings regarding the relevant technology until it has reviewed Dr. Nichols’ report,” she said. A recording industry spokeswoman sought to downplay Patel’s latest ruling.
“Napster still needs to comply with the order,” said Amy Weiss.
Napster attorney Robert Silver praised Patel’s reading of the appellate ruling.
If record labels want to stop the trading of copyright music, it’s crucial that they provide specific file names to Napster.
“It is the only way that we can maximize the effectiveness of the filtering of noticed works that are actually on the system,” Silver said.
A total of 17 million Americans — 20 percent of all people using the Internet — used Napster in February, and despite court-ordered screening technology, 12 million people still managed to use it in March, according to the Jupiter Media Metrix research firm.
Meanwhile, other ways of trading music over the Web are gaining in popularity. People logging on to Bearshare.com, a decentralized network of users communicating directly with each other, grew from 187,000 in February to 520,000 in March, the research firm said.
The case is In Re Napster, C00-1369.
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