JUDGE CALLS NAPSTER’S FILTERING "DISGRACEFUL"

Just one day after appointing a mediator to assist in the ongoing legal battle between Napster and the recording industry (hitsdailydouble.com, 4/10), Judge Marilyn Hall Patel spoke out against Napster's inability to filter out copyrighted material, according to CNET News.com.

"I think this is disgraceful," Judge Patel said, in a hearing in San Francisco Tuesday (4/10).

Patel contended that if people on the service could find a song, Napster ought to be able to block it. "You find a way to filter out [those songs] for which you can search," she said, then added that if the netco cannot comply, "maybe the system needs to be closed down."

When Napster attorney Robert Silver objected that such a shutdown might be opposed by the 9^th Circuit Court of Appeals, which oversees Judge Patel (and has reversed her decision once before), the judge, according to The Wall Street Journal, responded with, "Maybe they need to take another look."

Naturally, one of Napster's lawyers had a positive spin on Judge Patel's comments. "I don't believe she was criticizing [Napster]," said Jonathan Schiller, whose interpretive skills were then further highlighted by his comment to a fellow barrister: "I think she's hitting on me."

Schiller insisted the judge—if not flirting with him—was simply asking why songs were still available. "We are confident that at the end of this effort she will say we are in compliance," he said, with a wink toward the bench.

But Patel stopped short of ordering Napster to change its filtering technology, awaiting the opinion of A.J. "Nick" Nichols (we would have written it A.J. "Nicholas" Nichols "Bee" or A.J. "And The Bear" Nichols or A.J. "A is for Apple, J is for Jacks" Nichols), the online veterinarian… er, veteran the judge brought in as a mediator.

Nichols—whose early comedy routines with Elaine May still tickle funny bones—also served as a neutral court expert in the suit Sun Microsystems brought against Microsoft.

Judge Patel revised her injunction last month, allowing the file-swappery to stay online provided it took all "reasonable" steps toward blocking copyrighted songs identified by the record companies. Napster has been blocking songs only when provided an artist name, song title and file name by the record labels. The company claims to have blocked 311,000 individual works, roughly half of the works the RIAA contends the labels have identified for Napster.

"When a judge says your efforts are disgraceful," said RIAA general counsel Cary Sherman, "you know something is wrong."