PATEL GETS SOLOMONIC IN NAPSTER DECISION

In a meticulously worded decision issued late last night, Judge Marilyn Hall Patel tried to straddle the fence, but has definitely outlined the terms by which a legitimate Napster can continue to operate.

The four-page preliminary injunction from the U.S. District Court for the Ninth Circuit, effective immediately, enjoins Napster from "engaging in, or facilitating others in, copying, downloading, uploading, transmitting or distributing copyrighted sound recordings in accordance with this Order."

The action also states that the labels "shall provide notice to Napster of their copyrighted sound recordings" by giving the title of each work, the artist's name, the names of the available Napster files containing such work and a certification that they own or control the rights allegedly infringed. The court held that the burden of proof be shared between the parties, that "plaintiffs provide notice to Napster" and that Napster "[police] the system within the limits of the system." Meanwhile, Patel acknowledged the difficulty of this task, but added that it "does not relieve Napster of its duty." Once the file-sharer "receives reasonable knowledge" of an infringement, it has three business days to eliminate the offending files. The Court gave Napster five days to file a Report of Compliance identifying the steps it has taken to comply with the Order.

RIAA President/CEO Hilary Rosen stopped popping the corks of Cristal bottles to say she is gratified with the District Court's ruling. "We intend to provide the notifications prescribed by the Court expeditiously, and look forward to the end of Napster's infringing activity."

The Warner Music Group chimed in: "The issuance of the injunction by the U.S. District Court underscores that going forward, music in the online world will not only be protected, but flourish in a legitimate marketplace where the artists' work will be respected and rewarded. It is in this environment that we will bring to market innovative services that offer consumers high quality music that is trusted, secure, attractive and easily accessible."

Universal Music Group added their two cents, which, given inflation, was worth 1.5 cents: "The Universal Music Group is extremely pleased that an injunction is now in effect. We intend to move rapidly to ensure that our copyrighted works are removed from the Napster system, and that the interests of our artists are protected. This is an important decision which will ultimately benefit consumers by laying the groundwork for a legitimate on-line music market."

Not to be outdone, Sony Music Entertainment issued the following statement on a seaweed scroll: "We are pleased the injunction makes clear that copyright must be respected no matter what the medium. It is now up to Napser to comply with the court's decision."

National Music Publisher's Association President/CEO Edward P. Murphy offered: "America's songwriters and music publishers applaud Judge Patel's order today that takes another positive step toward bringing Napster into compliance with long-established copyright law. We will, of course, continue to cooperate fully to create an environment where the fundamental principle of fair rumuneration for the creators of the songs used over the Internet is respected. Now can you hum a few bars for me?"

Last week, Napster had already stated it would begin obtaining the names of copyrighted works by the likes of the Beatles, Billy Joel, Pearl Jam, Dr. Dre and Metallica, vowing to eliminate them through its newly developed screening technology, though certain glitches, such as purposeful misspellings of titles, had arisen (see related hitsdailydouble.com story, 3/5).

Larry Miller, President of, no not Sit & Sleep, but digital management firm Reciprocal Entertainment, said today's ruling sends a message to the entire media industry and anyone with intellectual property of any kind. "Now is the time for media companies to accept that peer-to-peer file-sharing will not stop with this verdict. Consumers want choices and high-demand content available to them. Media companies must take the appropriate steps to make the content available in a convenient yet protected method, one that will encourage secure distribution and discourage piracy."

In Patel's ruling, she did not make Napster monitor Billboard magazine's weekly "Hot 100" singles or "Top 200" albums for purposes of blocking infringing material, although she did force them to buy six HITS subscriptions. She did however, say the industry could designate certain songs prior to release for blockage even before they appeared on the file-sharer "based on a review of that artist's previous work...and the likelihood of infringement."

The labels had previously posted a bond of $5 million with the court pursuant to the decision.