In a last-ditch effort to stave off extinction, the controversial song-swapping service Napster Inc. promised a federal judge Friday that it will block access to at least 1 million copyrighted song files--a move that could mark the beginning of the end of Napster’s life as a freewheeling vehicle for pirated music.
Napster attorney David Boies told U.S. District Judge Marilyn Hall Patel that the Redwood City-based company will launch its initiative this weekend, blocking an estimated 64 million users from accessing certain tracks.
Fans and industry watchers had prepared for the worst Friday, expecting Patel to rule on whether Napster could continue operating in its current form. But the judge, who once called the service “a monster,” made it clear that she would take more time before issuing a decision. Court observers said they expect a ruling to come quickly.
Napster had long claimed in court, and had told record label executives, that it was technically impossible for the service to filter out copyrighted music.
But faced with the possibility of a court injunction that would shut it down, the embattled firm quickly capitulated.
“There’s no doubt the company, to comply with the Court of Appeals, will change the service,” Boies said Friday.
How many songs will be included in the initial blocking remains unclear, and the company declined to specify. But Boies said the company has identified at least 1 million unauthorized audio files in its service. Analysts say most of them are duplicates.
“We have had a group of people working night and day on a process to block access to these files,” Boies said in court.
Napster Chief Executive Hank Barry said the filter takes the names of artists and copyrighted songs, and screens out files that match. The software, for example, could block a file that is named “Britney Spears,” “Britney--Oops,” or “Oops I Did It Again.”
The five major record labels and some music publishers have sent Napster information on at least 5,600 song titles.
“Some people find religion. Napster found filtering,” said P.J. McNealy, a senior industry analyst with research firm Gartner. “A year ago, even two weeks ago, Napster said they couldn’t do this. Now, they’ve suddenly seen the light.”
So have millions of Napster users, who have been madly downloading audio files off the service on the assumption that the company’s days are numbered. An estimated 2.8 billion music files were exchanged on the Napster service in January, according to music research company Webnoize.
The decision to start blocking files was spurred by a recent federal appellate ruling, which found that Napster could be held liable for copyright infringement and that an injunction was warranted.
“We are here today to discuss not if, but what an injunction should look like,” Patel told lawyers representing Napster and the major record labels, who spent more than two hours debating the issues in a packed courtroom.
The most contentious issue, however, is who should carry the burden of policing the Napster service for copyright infringement.
Attorneys for the world’s biggest record labels--Vivendi Universal’s Universal Music, Sony Music, Warner Music, EMI Group and Bertelsmann AG’s BMG--insist that it is Napster’s responsibility to keep copyrighted music off its service.
Napster insists that the music industry is responsible for tracking copyright infringement, and must provide the file name and other identifying data to Napster.
Napster tried to keep Patel from issuing the expected injunction by appealing to a full panel of the U.S. 9th Circuit Court of Appeals. The appeals court hasn’t responded to the request, and there is no deadline for a decision.
Until then, Napster’s survival remains questionable, despite its bid to start policing itself.
Napster’s filtering plan is a piece of the answer, but it won’t end its copyright problems altogether, said Talal Shamoon of InterTrust Technologies Corp., an anti-piracy company working with the major record companies.
Instead, he said, the Napster system needs to be rebuilt with a complete set of security technologies that protect rights without alienating consumers.
“It’s beginning to look more and more like Hank’s walking around with a fig leaf on,” Shamoon said. “The need for filtering technologies, which treat pirates as criminals, will be diminished when he rolls in technology that treats pirates as competitors.”
Boies admitted that the filter “is not perfect,” and that there are still some technical issues that need to be hammered out.
But as far as the music industry is concerned, a more meaningful gesture would be for Napster to shut down while it negotiates licenses--something the company can’t afford to do, said analyst Ric Dube of Webnoize.
"[Napster’s] main goal right now is to transform their huge user base into paying customers, and that’s going to be very hard to do if they have to shut down and then try to get everybody to come back,” he said.
Indeed, many users are giving up on the service altogether, and are scrambling to download Gnutella, Napigator and other competing file-sharing tools. In the last week, music fans have downloaded more than 200,000 copies of iMesh, a software program by an Israeli-based company that offers a service almost identical to Napster’s.
The shift underscores the fact that, even though Napster’s filter is a big victory for the record labels, the industry’s fight to maintain its empire in the Digital Age is only beginning.
At the New Residential College on the USC campus, where computers and stereos rival the bunk beds for space, the news of Napster’s legal roadblock was greeted with a collective yawn.
“It doesn’t affect me at all,” said freshman Matt Engstrom, 19, who said he hasn’t used Napster for months. “I think we’re all beyond Napster now.”
Students say they have moved on to other underground services in the last few months. New programs, from MusicCity.com to LimeWire, are easier to use and offer the same vast selection of bootleg tunes, they say.
“I don’t even think people know it’s closing today,” said freshman Stephanie Shulman, 19.
When her computer recently crashed, a friend sent her 300 songs to get her collection going again.
It took 20 minutes with the high-speed Internet connection available in USC’s dorms.
The dorms are rich with such underground networks, with students often tapping into a slew of legitimate technologies--such as America Online’s Instant Messenger service--to share tunes.
Despite the obvious legal and technological risks, some companies see the looming injunction against Napster as a ripe opportunity.
LimeWire, a New York-based software developer, this week reportedly installed new computer servers to handle the growing demand for its file-swapping program.
Times staff writer Rachel Uslan contributed to this story.