Judge critical of Napster, but injunction is unchanged

Napster Inc. and music labels represented by the Recording Industry Association of America (RIAA) squared off again on Tuesday in a San Francisco court to debate how effective the music-swapping company has been in implementing a filtering system to block copyrighted material from its users.

While Judge Marilyn Hall Patel declined to amend last month's injunction which divides responsibility for identifying those works between Napster and the record labels, she did signal her impatience with Napster's apparent inability to block some copyrighted songs from its service.

Carey Ramos, a New York lawyer representing songwriters and music publishers, presented evidence to the court which he said reveals that more than 1,000 music files that were supposed to have been blocked by Napster's filters are still being traded among its users. Judge Patel's response was a terse one.

"I think this is disgraceful," she said. "You'd better find a way to get them off the system."

Judge Patel will call on the assistance of a court-appointed moderator, A. J. "Nick" Nichols, who will help her decide the best way to prevent Napster from trading copyrighted materials. On Tuesday, she ordered Napster and the RIAA to each appoint their own expert who will meet with Nichols to discuss the filtering system and other technology issues surrounding the case.

No timetable was provided for that meeting, and Judge Patel indicated that she will not alter her injunction until Nichols has met with the experts from each side. "I am not amending the injunction," Judge Patel told the court Tuesday.

Nichols has been studying the case for at least two weeks at the request of the court, although he was officially named as moderator Tuesday. His job will be to serve as an expert adviser to Judge Patel, surveying the problems with filtering songs and examining how well each party is working to address the complex technology problems in the case.

Napster faces the possibility of being slammed with further litigation, as some independent musicians and music publishers have amended their current lawsuits by asking the court to give them class action status. That would open the way for additional members of their particular "class" to join the lawsuits.

Judge Patel gave no indication Tuesday as to which groups might be awarded class action status. However, legal observers at the courtroom said music publishers stand the greatest chance of being awarded class action status since members of that class would be easiest to identify.

Between March 16 and April 2, Napster blocked more than 1.7 million file names, so its number of files shared per user decreased more than 50 percent, a Napster spokesman said Tuesday.

Furthermore, the company has seen a reduction in its user count and a decline in the reliability of its service as a result of the filtering measures it has taken, according to Malcolm Maclachlan, an electronic media analyst with International Data Corp. (IDC) in Framingham, Massachusetts.

"It is kind of interesting to look at how this is going to go," Maclachlan said earlier Tuesday. "The filtering itself does not seem to have worked too well. Instead, it seems to have slowed down the network and made downloads drop."

The filtering techniques employed by Napster have not removed as many songs as some hoped. Users, like Maclachlan, complain that the filters just slowed network speeds to the point where many downloads fail before they are completed.

"The drops have gone way up," he said. "The irony here is that the filters seem to have destroyed Napster instead of fixing it."

Judge Patel potentially could ask Napster to use other types of audio recognition software to ban protected songs from its site. However, Maclachlan thinks that approach would also slow Napster's network significantly.

Napster seems intent on continuing its legal fight against the RIAA and others -- a move that Maclachlan believes could pay off if it can stay afloat for the duration of the legal proceedings.

"If they could just keep 5 percent of their users through all of this, it would be a coup," he said.

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