Judge: Record labels are wrong on key part of Napster remedy

Saturday, April 28th 2001, 12:00 am
By: News On 6

SAN FRANCISCO (AP) _ A federal judge said the record industry has misinterpreted a key appellate ruling in the case against Napster Inc., and must do more to help the file-swapping service prevent millions of music fans from trading copyright songs.

U.S. District Judge Marilyn Hall Patel's memorandum effectively means that for now, Napster's interpretation holds _ that the record labels must identify at least one infringing file on the ever-changing network before Napster is obligated to remove copies of the song.

Napster says it has been doing the best it can to remove any infringing songs brought to its attention, but this has proved exceptionally difficult, since Napster users constantly make them reappear under different names. This week, Napster began using even stronger screening technology in an attempt to comply with court orders that copyright material be removed.

Patel has described Napster as an out-of-control ``monster'' that should be shut down if the company can't make its filters work. But her memorandum Friday notes that it remains the record labels' burden as well as Napster's to identify specific infringing song files.

Patel invited the Recording Industry Association of America to ``seek clarification in the court of appeals'' if it disagrees with her legal analysis.

The 9th U.S. Circuit Court of Appeals upheld Patel's July order that Napster remove all copyrighted works from its file-swapping site, but with several key caveats. The appellate court said the record industry trade group must ``provide notice to Napster of copyrighted works and files containing such works available on the Napster system before Napster has the duty to disable access to the offending content.''

Patel ruled Friday that the record labels' interpretation, that they need only tell Napster to remove a song by a specific artist _ that they don't have to identify any infringing files _ ``requires reading more into the paragraph than the Ninth Circuit has made apparent.''

Napster's interpretation: as well as the artist and title, it needs at least one file name showing that the song is actually being traded. Otherwise, Napster must search for hundreds of thousands of variations of artist and title combinations that may not be on the network in the first place.

``It is the only way that we can maximize the effectiveness of the filtering of noticed works that are actually on the system,'' Napster attorney Robert Silver said.

A recording industry spokeswoman sought to downplay Patel's analysis. ``Napster still needs to comply with the order,'' said Amy Weiss.

As of Thursday, Napster said it was blocking 1.75 million possible combinations of artist-and-title names and variants. Napster has made it impossible to search for many titles in the first place, effectively blocking 85 percent of the songs users try to trade. On Thursday alone, the filters screened out 1.6 billion files, the company said.

Patel invited both sides to submit more guidance on how Napster might prevent newly released songs from appearing on the site, and noted that her own ``neutral technology advisor,'' A.J. Nichols, is studying the technological issues in the case.

``The court will reserve making any findings regarding the relevant technology until it has reviewed Dr. Nichols' report,'' she said.