Napster claims labels trying to "relitigate"

Leading up to its first court appearance in over a month, Napster Inc. released its third brief on Thursday, detailing its compliance with a U.S. District Court order that it block copyrighted material from its service. With a hearing scheduled for April 10 in the courtroom of Judge Marilyn Hall Patel, who handed the order down, Napster and its foe, the Recording Industry Association of America Inc. (RIAA), have traded increasingly hostile legal filings for the past month.

In Napster's latest brief, which details its efforts in the two weeks spanning March 16 to 30, the company argued that not only has it effectively filtered copyrighted material from its service, but that the record companies suing it are attempting to "relitigate" the case and its ruling in their filings.

The RIAA's last filing charged that Napster was failing to abide by the court's order and was not taking adequate steps to block infringing material. Napster responded by saying that the RIAA is "seeking to relitigate issues already decided" by the court. The issue of contention is whose responsibility it is to provide what information to Napster to block files. In a previous brief, Napster had said that the RIAA was failing to provide the artists-song title pairs, filenames and proof of ownership the judge's order required. The RIAA countered that it was abiding by the court's order and that Napster had brought any problems it had on itself by creating its service in the first place.

Napster charged in Thursday's brief that the RIAA's position is "unfair in light of the extent of the good faith efforts that Napster has already expended" and "make no sense, because they are based on an attempt to circumvent the requirements" set out by the court in its ruling. Not only that, but Napster also said that the RIAA is attempting to return to the court's original ruling, which was overturned on appeal for being too broad. In asking the court to place more of the burden on Napster for determining which files should be blocked, the RIAA is violating the court's order, Napster said.

This action has even more far-reaching implications, Napster said. "As a practical matter, Plaintiffs' position cannot be correct. If an Internet Service Provider, such as Napster, can be "put on notice" -- and required to block and patrol its system -- simply by being provided with catalogues of millions of artists and titles absent any proof of availability of copyrighted works on the ISP's system, the operation of Internet technologies would be seriously compromised."

Despite this dust-up, Napster also said that its success in blocking copyrighted songs is "incontrovertible." Since March 20, the company has added 15 persons to its staff dedicated to blocking materials and has blocked more than 550,000 files, according to the brief. The total number of files blocked now sits at more than 1.7 million files.

To block files on this scale, Napster said it has instituted three new filters: one which prevents previously identified artists, title or variants from returning any results at all (i.e. a search for "Metallica" would return no results at all); a second which creates a keyword system which blocks files that includes those keywords; a third which reads numbers added to files in an attempt to circumvent the filters as new words and ignores them. These filters have resulted in the 70 percent of infringing files that the RIAA claimed in its last brief were still available dropping to near zero, according to Napster.

Napster has also changed its terms of service to make attempts to circumvent its filters an offense which results in removal from the service, and also now deletes posts from its message board which discuss ways to sidestep the filters.

While the RIAA had argued that Napster's filters were not sufficient and ought to be augmented to include checksums (the unique mathematical "fingerprints" each MP3 contains), Napster countered that the court's ruling did not call for such a step and that the move would be overly complex and burdensome.

In concluding, Napster asked that the court require the record companies to specify which company owns a particular song being listed for blocking and that the lists of songs to be blocked be made public as they are of interest to the public, the press, fans and artists. It also asked that the court make clear that the RIAA must include filenames for songs to be blocked before Napster must act, that lists lacking filenames may be ignored, and that files must be blocked only after it has been determined that they actually contain the song in question.

Napster was originally sued for copyright infringement in December 1999 by the five major labels, Universal Music Group Inc., Sony Music Entertainment Inc., Warner Brothers Music Group Inc., EMI Group PLC and BMG Entertainment Inc. In October of last year, Napster signed a surprise agreement with BMG AG, the parent company of BMG Entertainment, to create a copyright-friendly service. Just this week, the record companies have signed a flurry of digital music deals with such Internet heavyweights as RealNetworks Inc. and Yahoo Inc.

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