ANALYSIS: HAS NAPSTER
DOWNLOADED A VICTORY?
While many insiders expected the massively popular online file-sharing service's demise this week, Ninth Circuit Court Judge Marilyn Hall Patel has arguably given it a new lease on life.
The judge issued a much more precise order today (3/6), commanding Napster to prevent users' access to copyrighted material that has been documented by rights-holders and to take "reasonable measures" to track down variants in spelling that allow unlicensed material to get through.
Napster must take action within three business days of receiving "reasonable" notice of illegitimate files.
Notice provided must include the title of the song (or "work"), name of the recording artist, names of files containing the work and certification that plaintiff owns the copyright—clearly a massive bureaucratic undertaking for rights-holders.
Patel's ruling allows rights-holders to dispute Napster's effectiveness in meeting the injunction's specifications; such disputation could bring about additional hearings.
The judge also gave labels a little extra gravy by allowing them to preemptively notify Napster of upcoming releases if there's a "substantial likelihood" from past swapping that the artist's new material will be pirated.
"We are gratified the District Court acted so promptly in issuing its injunction requiring Napster to remove infringing works from its system," reads a statement from RIAA chief Hilary Rosen. "We intend to provide the notifications prescribed by the Court expeditiously, and look forward to the end of Napster's infringing activity."
Said Napster CEO Hank Barry in response to the ruling: "We will continue to press our case in court and seek a mediated resolution even as we work to implement the court's order. We will continue to seek a settlement with the record companies and to prepare our new membership-based service that will make payments to artists, songwriters and other rights-holders."
Both parties have their work cut out for them. Napster users have been pretty resourceful so far about finding ways around the netco's song-removal technology, even using Pig Latin in file names to elude detection.
Damages for past copyright infringements were not discussed in the injunction order. Napster previously asked the full 25-member Appeals Court to rehear the injunction appeal. From there it could go to the Supreme Court. Once the appeals are exhausted or ruled on, a trial date to determine damages can be set. This is far from over. Faaaaaaaaar from over.
And in the meantime, mediator Eugene Lynch has scheduled a meeting on Friday.
But despite the netco's public expressions of concern about the effectiveness of its security technology, Hank Barry, Shawn Fanning and company have gotta be smiling on the inside—the tug-of-war over what is and isn't available will most likely keep users searching away until the summer rollout of its Bertelsmann-backed paid service.
In fact, Tuesday's outcome could ultimately mean a victory for Napster, provided that damages for past infringements don't break the company's back. But even if damages become astronomical, it's possible they could be incorporated into a licensing scheme negotiated with label groups and others for the pending subscription version of Napster.
Speaking of which, Vivendi Universal chieftain Jean-Marie Messier—previously one of the netco's most vocal antagonists—told a London media conference that his Universal Music Group would be open to licensing music to Napster if it respected copyright and its technology were "reasonably secure" (see related hitsdailydouble.com story, 3/6a).
Look for more battles to be fought, deals to be done and spin to be spun as the world of Napster keeps on turning.
Marc Pollack & Simon Glickman
