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Napster Pelted with Lawsuits

Using Napster's months-old claim that blocking certain songs from file-swappers was technically impossible as a hammer, EMusic.com Inc. became the first of what could be multiple firms to sue the harried company for vicarious copyright infringement and unfair competition.

The complaint was filed Tuesday on the same battleground where all of the Napster-versus-RIAA battles have been fought -- the United States District Court for the Northern District of California in San Francisco.

EMusic's music download business is a similar business model to the one that firms like Napster and CenterSpan (with its Scour Exchange) have been working toward -- a fully legal music subscription service -- since their respective technologies were decried a year ago.

EMusic President and Chief Executive Officer Gene Hoffman Wednesday echoed what music copyright lawyers across the country said upon learning that Napster did in fact have the technical capability of filtering specific content: Napster lacks credibility.

"For over six months, Napster Inc. has flatly rejected our requests to filter out and effectively block EMusic tracks from being traded on their system without our permission," said Hoffman. "Napster has stated clearly to us and to the courts that they believed such a system was technically impossible."

"In light of this position, Napster's ability to quickly implement such a filtering system over this past weekend shows the company's true motive -- to unfairly build a business upon the copyrighted works of others," Hoffman added.

Larry Iser, partner at the Los Angeles, Calif.-based firm Greenberg Glusker Fields Claman Machtinger and Kinsella LLP, where he heads the firm's music litigation and intellectual property practices, commented on the EMusic suit via e-mail to InternetNews.com Wednesday.

"Now that the U.S. Court of Appeals in Napster has laid to rest the misguided populist notion that users of the Internet in general or Napster in particular have some 'digital right' to copy or distribute protected sound recordings for free, EMusic's complaint against Napster should be seen as only the first volley in a courtroom crusade by music rights holders against any and all dot-coms that persist in offering copyrighted sound recordings for free," Iser said.

Last Friday Napster stated in court that it would attempt to filter music files by artist name and song title -- something suggested long ago that Napster shot down as "technically impossible."

The way it works is simple to explain, even if it was challenging to architect. Napster users upload lists of songs to share as usual. The filtration list then compares that user list to say, a list of a million banned songs, and blocks them from use. If they are not blocked, they will be visible in the Napster index, users can still get the songs, effectively circumventing the filter.

After learning about Napster's optimistic claims about having the capability to create such a filter last Friday, patent infringement attorney Robert Schwartz, a partner at O'Melveny & Myers, said the idea of the technology was impressive, but that it could do damage to Napster's credibility going forward.

"They had actually told the judge that blocking files was technically impossible," Schwartz told InternetNews.com. "And then they say months later that they can do it?"

"Because they're fessing up with the capability to screen files, they'd better take every artist and composition on the list and block them or it could come back to haunt them in future court dates."

EMusic's suit, then, was somewhat predictable to those who follow the tracks of infringement and unfair competition litigation. It also comes a couple of