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
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
“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
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
“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
days after U.S. District Judge Marilyn Hall Patel issued a preliminary injunction against Napster, mandating that the outfit begin hampering songs
from being traded through its service. Patel also treated the firm to a
little kindness (which some who see the glass as half full have seen as a
victory”) by denying the recording industry’s taller request.
So, instead of having to remove all copyrighted works, Patel said the
plaintiff record labels must identify infringing file names, song titles and
artist names to be blocked — not an easy order or onus for any organization
to bear. The labels said they fully expected to be required to offer song
titles and artist names, but they did not count on providing music file
The headline at the top of the story did say “lawsuits”; the implied
plurality was no falsification. After finding out that much of the
recordings from the Grammy Awards made their way onto the file-swapping
exchange, producers of the show also filed suit against the troubled firm
for allegedly facilitating illegal trading of music files from the show,
including rap star Eminem’s duet with Sir Elton John.
Filed in San Francisco Federal Court Tuesday, the suit asks for compensation
for the millions of dollars the National Academy of Recording Arts and
Sciences felt it lost. The organization would seem to have a legitimate
gripe as it had intended to remix the material for retail sale.