EMusic Uses Search-and-Cease Program Targeting Napster
Online music retailer EMusic Inc. introduced a new technology Tuesday that critics called the most invasive software weapon unleashed on consumers who swap free music files on the Internet.
The Redwood City, Calif.-based company said the software program is aimed squarely at users of the Napster song-swapping service and is a last-resort effort to educate the public about the seriousness of online piracy. It searches through consumers’ computers and flags digital-music files that it believes are pirated.
Among other things, the EMusic program could result in Napster users being expelled from the song-swapping service and their current Internet provider. Under the Digital Millennium Copyright Act, service providers such as America Online and EarthLink would have to comply with EMusic’s request and investigate claims.
Privacy experts and industry analysts were stunned at EMusic’s aggressive approach, saying that its automated program underscores the inherent struggle between protecting both copyrights and personal privacy in cyberspace.
“This is the dark side of [file-sharing] technology,” said P.J. McNealy, an industry analyst with the research firm Gartner Group. “The timing of all this, right before a holiday weekend, is priceless. If I’m on vacation, it’s possible that Napster and my [Internet service provider] have been notified that I should be bounced offline.”
EMusic officials contend that, simply by joining the Napster service, users are forfeiting their right to privacy because they agree to let music-hungry strangers peer into their computers.
“Privacy’s not the issue. Piracy is,” said Gene Hoffman, EMusic’s chief executive. “This is a public education campaign on our part, more than anything else.”
Napster officials acknowledged that they have been in talks about copyright issues with EMusic for several months but said they never agreed to allow EMusic to run this particular program. The two companies are rivals in the emerging market of downloading digital tunes.
“This raises substantial privacy concerns, and we need to review it in regards to our terms of service [policy],” said Napster Chief Executive Hank Barry.
EMusic’s search-and-stop program, which rolled out mid-morning Tuesday, monitors the song swaps on Napster that allegedly infringe on the rights of EMusic’s artist and label partners. The company has licensing agreements covering more than 600 independent record labels and certain tracks by popular artists such as Green Day, Goo Goo Dolls, Louis Armstrong and Elvis Costello.
Here’s how the tracking system works: EMusic’s program uses robotic software agents, known as “bots,” to automatically crawl through Napster’s computer servers and search for information such as the name of a particular song or artist.
The program then flags any file that contains the name of an artist or track that EMusic owns the copyrights to, or “anything that looks like it might be ours,” Hoffman said.
For example, a Napster user who has stored tracks by Elvis Costello--or Elvis Presley, for that matter--would be tagged for a closer look.
The software program then goes into the user’s computer, grabs a copy of the track in question and automatically compares it with the original song that EMusic owns.
“If there is a match between the two, or a percentage of the two tracks are similar, then we go back and keep a record of everything you’re sharing,” Hoffman said.
EMusic then sends the Napster user an instant message, warning that he has 24 hours to pull the song in question out of reach.
If the Napster user fails to pull the track, EMusic said, it will contact Napster and, under federal law, force it to bump the user off the system.
If the person somehow gets back on the Napster service and continues to make the tracks available, EMusic will notify the user’s Internet service provider and ask it to block that person’s account. If the Internet provider takes no action and ignores the request, it could be held liable for contributory infringement.
The Recording Industry Assn. of America, the Washington trade group that represents the largest U.S. record conglomerates, believes that record labels might eventually be able to use such technologies to monitor and combat music piracy.
“This technology is further verification that, despite what Napster said in court, it is very easy to track copyrighted songs in the world of file sharing. EMusic has proven it,” RIAA Chief Hilary Rosen said Tuesday. “We believe this technology can clearly be applied to much broader catalogs than just EMusic. We’re already talking to EMusic, and they have told us how systems can be used to control the flow of music.”
What does, and does not, qualify as public domain is part of the problem underlining the debate. When a person joins Napster, the software specifically asks the user to indicate which folders are open to the public.
It also clearly states that in joining Napster, users agree to let other people pull files and information off their computers.
But Napster also is very clear about its ban of automated bot programs, similar to the one EMusic plans to use. On its Web site, Napster’s terms of service--or the rules to which all users must agree--state that no one can invade “the privacy of, obtain the identity of, or obtain any personal information about . . . any Napster account holder or user.”
While Napster is building a legal, all-you-can-eat subscription service, EMusic already has rolled out such a model, letting consumers download an unlimited number of its MP3s for as little as $10 per month.
The service is limited to EMusic’s roster of independent-label artists, and the audience remains relatively small. Sources peg the number of paying subscribers in the thousands.
Napster officials estimate that the public has downloaded its software more than 38 million times.
“Intellectual property is something we want to protect in the United States,” Hoffman said. “We’re paying royalties to artists and labels today, and we’d like to increase those payments.”
Hoffman estimated that between one-third and one-half of EMusic’s catalog of 140,000 songs were available for free on Napster. He declined to say what the financial impact of such file-swapping was for EMusic.
Critics, however, say EMusic is merely piggybacking on Napster’s success and trying to lure customers from its enormous subscriber pool. In the instant message that EMusic will send to copyright violators, the note will include a link that transports users to EMusic’s Web site, Hoffman said.
Analysts questioned the effectiveness of EMusic’s approach and warned that, like the rock act Metallica, the company could face a strong backlash among consumers who resent such tracking techniques.
Lars Ulrich, drummer with the heavy metal band, has been one of Napster’s fiercest critics in recent months, and his band alienated fans by becoming one of the few major rock acts to join the legal attack on Napster. In April, the band sued for copyright infringement.
EMusic shares, which have plummeted from a yearlong high of $19.63 in December, rose 19 cents on Tuesday, closing at $1 on Nasdaq.
