Appearing to give Napster (dossier) a last-minute reprieve, a federal judge has ordered the Net's most popular music service to remove unauthorized songs only after copyright holders have supplied information detailing which works are being pirated.
U.S. District Judge Marilyn Hall Patel of San Francisco issued her modified preliminary injunction Monday, in a closely watched case that began with a lawsuit filed against Napster by all five of the major record labels. Napster, which faced the threat of being shut down by a harsher ruling from Patel, appears to have dodged a bullet with Tuesday's decision, which adopted much of the wording Napster had pushed for during a court hearing Friday.
Patel's order gives Napster three days to remove unauthorized music from its system, but first requires music labels to provide Napster with the song title, artist name and file name associated with the copyright infringement on Napster's system. The record labels must also provide certification that they control the copyright to any given song.
The ruling appears to be good news for Napster, which has said that if the judge adopted remedies requested by the recording industry, it would effectively be shut down.
"As we receive notice from copyright holders as required by the court, we will take every step within the limits of our system to exclude their copyrighted material from being shared," Napster CEO Hank Barry said in a statement. He added that Napster will continue to press its legal fight against
the labels even as he tries to persuade them to join forces with Napster.
Hilary Rosen, president and CEO of the Recording Industry Association of America, said she was "gratified" by Tuesday's ruling and said EMI, Warner, Sony (SNE), Universal (dossier) and BMG - which all sued Napster in December 1999 - would respond swiftly.
"We intend to provide the notifications prescribed by the Court expeditiously, and look forward to the end of Napster's infringing activity," she said in a statement.
Though Napster had hoped that Patel would put the onus of identifying copyright infringements on the record labels, the ruling did not side entirely with Napster. The judge handed the labels a major carrot by allowing them to provide Napster with lists of songs not yet released and not yet being traded on the network.
That allows the labels to prevent as-yet-unreleased songs from becoming available on the service, which allows millions of users to download songs for free. Napster had argued Friday that such a requirement would be inconsistent with a ruling last month from a federal appeals court and would badly degrade the Napster network's performance. Patel recognized the hardship but said the damage done to the record labels by having unreleased music made available over the network outweighed any inconvenience to Napster.
"To order otherwise would allow Napster users a free ride for the length of time it would take plaintiffs to identify a specific infringing file and Napster to screen the work," Patel wrote.
On Sunday night, Napster began blocking a select number of songs from being indexed on its service. The most noticeably affected artists were the heavy metal band Metallica and the rap star Dr. Dre, which have sued Napster for copyright infringement. Files containing songs by Jimi Hendrix and the Beatles also were affected.
Napster says it blocked songs whose copyright holders provided the type of identifying information it had asked for at Friday's hearing. Within 24 hours of the new filter's implementation, however, most of those songs were once again available on the system, with new file names that included minor typos and misspellings - for instance the Beatles' "Let it Bee" - that enabled people to work around the new limitations.
In her ruling Monday, Patel acknowledged the cat-and-mouse nature of efforts to remove unauthorized songs from Napster's index. "If it is reasonable to believe that a file available on the Napster system is a variation of a particular work or file identified by plaintiffs, all parties have an obligation to ascertain the actual identity (title and artist name) of the work and to take appropriate action," Patel wrote.
The judge also noted that other technical limitations would make it hard for Napster to police its system. "It would be difficult for plaintiffs to identify all infringing files on the Napster system, given the transitory nature of its operation," Patel wrote. "This difficulty, however, does not relieve Napster of its duty."
Monday's ruling will apparently allow Napster to remain open while it tries to reach a deal with the record labels. In October it forged a groundbreaking pact with BMG parent Bertelsmann, and it has been working feverishly to get other major labels to sign on. So far these other labels have rebuffed Napster's efforts, though Vivendi Universal Chairman Jean-Marie Messier told reporters he was warming to the idea of licensing Universal's catalogue to the song-swapping service. Napster also faces the possibility of having to pay billions of dollars in damages if its lawsuit with the record labels goes to trial.
