Judge Says Napster Shutdown Possible
An angry federal judge told Napster Inc. Tuesday that its efforts to block copyright violations were “disgraceful,” warning that she might order the popular online song-sharing system to shut down.
While sharply rebuking Napster, U.S. District Judge Marilyn Hall Patel of San Francisco said Tuesday that she wouldn’t act until a newly appointed technical expert reviews the situation.
Patel’s remarks came during the first hearing to determine how well Napster is complying with the anti-piracy injunction that Patel issued last month as part of the recording industry’s copyright-infringement lawsuit against the online song-swapping service.
The technical expert, consultant A.J. “Nick” Nichols of Mountain View, Calif., will examine Napster’s techniques for blocking copyrighted files from being downloaded on its system, as well as any available alternatives. Nichols is slated to begin talks Friday with representatives of Napster and the copyright holders.
Napster attorney Jonathan Schiller said he welcomed the review, which he said would show that Napster was doing everything that could reasonably be expected to comply with the injunction.
Patel also indicated that she probably will expand the injunction against Napster, which covers only a handful of music publishers, to protect all 27,000 commercial music publishers represented by the Harry Fox Agency. This expansion could multiply Napster’s difficulties by forcing it to block the downloading of millions of additional songs and, potentially, exposing it to even larger financial penalties.
But Patel indicated she probably won’t broaden the injunction to cover all independent performers, labels and songwriters, as requested by lawyers for two independent artists. Such a move, she said, would make the lawsuit unmanageably broad.
Napster enables users to search for and copy songs from each other’s computers for free, but the company is developing a fee-based version that will compensate copyright owners for their works. To help users of the new system find songs that match their tastes, Napster said, it has acquired technology from Sunnyvale, Calif.-based Gigabeat that searches for music based on similarities among artists.
In their lawsuit, the major labels and music publishers have accused Redwood City, Calif.-based Napster of enabling the widespread piracy of recorded music. Although it did not find that Napster’s system was inherently illegal, a three-judge appeals panel instructed Patel to impose a pretrial injunction barring Napster from enabling users to make unauthorized copies of the labels’ and publishers’ works.
The question for Patel on Tuesday was whether each side had done enough to comply with the injunction. Patel voiced little sympathy for Napster co-counsel Robert Silver’s contention that the labels hadn’t provided enough specific information, but reacted strongly when lawyers for the labels and publishers complained that Napster’s filters are completely porous.
In particular, Patel seemed appalled when Cary Ramos, representing the music publishers, said more than a thousand copies were still available of two compositions--”Jailhouse Rock” and “Unchained Melody”--that the publishers had been asking Napster to block for more than a year.
“This, I think, is disgraceful,” Patel said as she reviewed Ramos’ documents. “With all the notice you’ve had--you’d better find a way to get them off the system,” she told Napster attorneys.
Silver said Ramos wasn’t taking into account all the files that Napster’s system was blocking. “Our index has 50% less file names,” he said, adding that about 1.3 billion downloads are blocked each day.
“Maybe the system needs to be shut down,” Patel said. Silver responded that the appeals panel had ruled that Napster has the right to remain in operation, prompting Patel to retort, “Maybe they need to take another look at it.”
The main complaint of the labels and publishers is that Napster blocks songs only when the user searches for both the artist and the title, making it easy to find a copyrighted song just by searching for the artist alone or the title alone. But Silver said that if Napster stopped users from searching for specific artists or specific titles, it also would prevent them from finding songs that they have specific permission to copy.
Frustrated by the bickering, Patel instructed representatives of both sides to work with Nichols. That process is expected to take several weeks, Schiller said.
