Napster to Alter Service to Block Some Songs

Napster Friday made the latest attempt to make good with the labels that
accused it of enabling mass file-swapping by telling the U.S. District Court
of Northern California that it would block users from accessing more than a
million files.

While technology experts had said in the past that this is nearly impossible
to do because of the massive volume of music files available on the outfit’s
service, Napster asserted that it would rig its software with content
filters to weed out the vast list of songs over which content owners
have raised a great ruckus.

In a press conference following the hearing Friday, Napster said the
filtration process was a matter of inserting a step in the sequence between
the file upload and the index viewing. No ruling on an injunction has been
made as of yet.

In order to make Napster’s proposition gel, it will need to work with the
recording industry to figure out which files must be filtered. This would
seem to be a daunting task, as the Recording Industry Association of America
(RIAA) said it does not feel like waiting for the filtration process to take

Napster attorney David Boies said that the screening process would block
files by artist name and song title. The technology works by creating a new
path for the users. Any software request would require it to go through a
gate. If that artist or title name matches up with something in the new
index, it won’t go through. Boies stressed that Napster would be unable to
actually go into a file and tinker with the content.

One patent infringement attorney Robert Schwartz, a partner at O’Melveny &
Myers who has acted as lead counsel on copyright, motion
picture and television studio litigation for the last 16 years, 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 “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.”

U.S. District Judge Marilyn Hall Patel had been expected to create a new
injunction that would shut Napster’s service down. Patel had attempted an
injunction last July only to have it overturned days later by a federal
appeals court.

Friday’s court date was seen by many industry watchers as a grand
opportunity for the record companies that are suing Napster en masse to
specify exactly how the software firm infringed on their copyrighted
content. A few stated cases may be all Judge Patel needs to shut down the

Still, Napster tried to compromise, albeit somewhat lamely, according to
some experts. On Feb. 21, the firm aired a compensation plan for the labels and artists whose material it
allowed to be spread near and far.

In the proposal, Napster pledged to yield $1 billion to the major labels,
songwriters and independent labels and artists over the next five years:
major labels would receive $150 million per year for a non-exclusive
license, predicated on files transferred; $50 million per year will be set
aside for independent labels and artists to be paid on the same files-shared

Larry Iser, partner at Los Angeles-based Greenberg Glusker Fields Claman
Machtinger and Kinsella LLP and head of its music litigation and
intellectual property practices, told recently that he sees
the proposed business model as more or less of a publicity stunt designed to
divert attention from 9th Circuit ruling.

Such overtures, Iser feels, won’t be met.

“I don’t think the remaining major record companies will see Napster’s offer

a serious, good faith offer to compromise,” Iser said. “The record
industry is nearly a $40 billion industry; the harm to the record industry
and to the copyrights themselves from the massive infringement enabled by
Napster greatly exceeds Napster’s offer. The industry would be crazy to
allow Napster to operate for the relative pittance Napster is offering.”

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