Another Suit Jogs the Industry’s Memory of Napster

Yes, you too, can sue Napster.

At least if you feel your old-time radio show
content is being passed around the Web like a beach ball in a ball park,
with everyone getting a clean shot in. Apparently that’s a scenario MediaBay
Inc. took exception to this week when it filed a lawsuit versus Napster Inc.
for, what else, but vicarious copyright infringement.

Delivered this week to the U.S. District Court for the Northern District of
California in San Francisco (where most Company X vs. Napster suits go), the
suit is the latest chapter in a two-year saga in which record labels and
various music and audio content providers are seeking to stop the
file-swapping company from spreading their content around the Web. In Cedar
Knolls, N.J.-based MediaBay’s case, that content would be classic audiobooks
and old-time radio shows, which are sold through direct response, retail and
Internet channels.

That another company has come forward to put the clamps on Napster is no
shock. What is curious is why MediaBay did not come
down on the company sooner.

When reached Thursday afternoon, MediaBay President and Chief Executive Officer Michael Herrick said loyal customers had reported a few months ago that MediaBay’s content library could be found on Napster. Admitting that it was possible that the radio shows could have been found on Napster for the last two years, Herrick said it was strange to learn that his firm’s content was on the harried file-swapping network.

“We had heard all about the music and Napster, but we were surprised to learn that our radio shows were on there,” Herrick said. “So we let them know about it… They were nice and all but it was like talking to the wall.”

And, in a public statement, Herrick said: “We believe that Napster should take a proactive approach toward preventing piracy instead of waiting for companies like MediaBay to enforce their legal rights.”

Remember that some months ago it was determined by U.S. District Court Judge
Marilyn Hall Patel that Napster would have to put technology in place to
block or filter lists of songs provided by the organizations who felt their
copyrights were being violated. Herrick’s choice of words is interesting
because it suggests MediaBay waited awhile, and perhaps gave Napster the
benefit of the doubt that it would remove MediaBay’s content from its vast
file sharing network.

Herrick also alluded to an injunction granted by Patel in a similar lawsuit,
which seems to be the course MediaBay would prefer the court to take as
Napster’s success in removing songs from its network have been spotty at

Like many of its fellow plaintiffs, MediaBay bills itself as a “legitimate
alternative to Napster” because it allows secure downloads of content
through its Web sites. Nevertheless, MediaBay’s action could serve as a wake-up call to companies: that music files are not the only content to get traded. Basically, if it can be heard on the Net, it can end up on Napster or others of its kind. Speaking of which, Herrick also said MediaBay was investigating other file-swapping firms to see if they’re allowing users to swap their radio shows; he declined to say exactly who.

Universal Music Group, Sony Music Entertainment, Warner Music Group, EMI
Recorded Music and BMG Entertainment got the legal ball rolling in 1999 by
suing Napster and denouncing it as a haven for copyright piracy that would
cost them billions of
dollars in lost sales.

In the past few months since Napster promised it would try to accommodate as
many outfits standing in line with piles of demands for specific artist and
song removals, the online music industry has taken serious steps to evolve
to being a different animal; AOL Time Warner, Yahoo! and Real Networks have
joined members of the Big 5 to create music subscription services, which may
see light this summer.

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