Napster, the Remix, May Not Yet Be Sound

A software problem at Napster Inc. shut down the company’s controversial song-swapping service this week, something that the record labels and music publishers have been trying to accomplish for a year and a half.

The glitch snagged Napster’s latest effort to stop copyrighted songs from being pirated, as a federal court has compelled it to do. It was just a temporary problem, yet it pointed to a larger and more difficult issue facing the company: how to decide whether a song is, in fact, authorized for copying.

Should Napster assume that any song file can be shared unless it hears otherwise from the copyright holders? Or should it prevent downloading until the rights holders give their blessing?

If the presumption favors sharing, Napster could continue to be a well-stocked outlet for underground recordings, such as live bootlegs, rarities and parodies. As one user told an online newsgroup of Depeche Mode fans, “On Napster, you can find rare remixes which you could never buy or order in store.”

Another example comes from a Napster user in Holland, who wrote, “I can still find some early jazz from the 1920s, or vintage Argentine tangos, or French chansons, or Yiddish Klezmer bands, or European cabaret artists, or sea shanties.”

Consumers might appreciate such things, but musicians are sharply divided as to whether bootlegs help or hurt their careers. For example, hard rockers Metallica and hip-hop artist/producer Dr. Dre have both sued Napster for copyright infringement. Yet Metallica welcomes the sharing of live bootlegs whereas Dre does not, said their lawyer, Howard King.

However, if Napster assumes that a song file cannot be shared unless the copyright holders give their OK, control of the service will shift from users to the record labels and music publishers. That’s precisely where it should be, some legal experts say, because the law gives copyright holders the exclusive right to decide whether their works can be reproduced and distributed.

Most of Napster’s online rivals don’t appear to care what the labels, publishers or artists want. AudioGalaxy, iMesh, Morpheus, BearShare and Kazaa, just to name a few, enable users to copy any song they find on other users’ computers.

That’s the kind of approach that landed Napster and one former competitor, Beverly Hills-based Scour, in federal court. Scour ran out of money and sold its technology to CenterSpan, which is testing a new version that’s limited to songs approved by the labels and publishers.

Like CenterSpan, Napster is developing a new service that it hopes will win the industry’s backing--and paying customers. A key part of the new Napster is technology that identifies the songs offered and swapped by users, making it possible to steer royalty payments to the copyright holders.

The company’s work on the new Napster dovetails with its efforts to comply with a pretrial injunction in the lawsuit brought by the labels and music publishers. The injunction forced the company to develop an increasingly effective set of filters to stop users from searching for songs specified by the labels and publishers.

The latest filtering software, which Napster deployed last week, looks at both the descriptive data and the acoustic properties of song files to identify and weed out songs not authorized for sharing. It didn’t work as well as expected, however, prompting the company to suspend song-swapping until the problems were solved.

The current plan, a Napster spokeswoman said, is to prevent sharing on two types of song files: those that cannot be identified, and those that a copyright holder has formally asked Napster to block. Users could keep swapping songs if they’re authorized for sharing or if the copyright holder isn’t aware they’re on Napster, as is the case with many bootlegs, rarities and songs from small labels.

Company officials haven’t decided yet what to do about those recordings on the new, fee-based Napster. They initially hoped to let users share any song file and compensate all copyright holders who stepped forward. But such an approach seems unacceptable to many artists, labels and music publishers, who argue that consumers don’t have the right to decide which songs can be shared over the Net.

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Times staff writer Jon Healey covers the convergence of technology and entertainment.