IS TIME ON NAPSTER’S SIDE?

One glance at the calendar makes a strong case for the latter scenario. For as this legal process is dragged out like a download of "Thick As A Brick" on a 14.4 modem, it's beginning to look like Napster is simply doing whatever it takes to stay open until summer.

In ideal terms, the company's proposed self-policing would be seen as a vital step toward its transformation into a copyright-friendly service.

However, some insiders view the swappery's latest maneuver as another in a long line of stalling tactics by which Napster can run down the clock and preserve its user base until the expected summer launch of its Bertelsmann-backed subscription service.

The netco is clearly hoping that this move will preempt a court-ordered shutdown.

Judge Marilyn Hall Patel, whose San Francisco court on Friday did not issue a ruling, is expected to take a hard line against the company. Anticipating a negative outcome, Napster lawyers presented a screening system to automatically filter out copyright-infringing files available on its service, asserting this filtering process would be launched over the weekend.

The burden for documenting these violations would fall on the rights-holders, as stipulated by the appellate court that found Patel's initial injunction "overbroad."

A quick glance at the results of Napster searches on Monday morning revealed that many users were offering content that was allegedly at the top of the to-be-filtered list. For example, a search for "Metallica, Enter Sandman" yielded numerous files labeled "Enter The Sandman" or simply "Sandman." There were also files with the titles put in some kind of code—for example, a "20" before each word in the file name.

Therein lies the rub—for unless the service is shut down completely, it seems unlikely that any filtering system will be able to prevent access to unlicensed songs users seek.

Key to Napster's balancing act is the ambiguity surrounding how well the company's new filtering technology really works. The company has taken pains in its statements to underline how difficult it has been to implement and that it would compromise the effectiveness of the service overall.

The RIAA, on the other hand, seized on the announced plans for filtering in order to charge that Napster had—ah ha!—had the ability to control copyrighted material all along.

Because it remains unclear how well unlicensed songs can be controlled, Napster users will most likely keep checking—and the company's security efforts appear to be a game of whack-a-mole. For the time being, it appears that a keyword is enough to find some variant of the title for any song one seeks.

As the case continues to take shape, it seems all parties involved have an interest in giving lip service to this new Napster-as-Cop phase of the game. Obviously, Napster is striving to keep some form of its service alive and well.

Meanwhile, observers indicate that the RIAA and the majors it represents are not 100% keen on putting the netco out of business, considering the enormous punitive damages that remain to be awarded by the court.

Besides, it's hardly in the interest of the majors to turn their backs on 100 million or so users if a satisfactory arrangement can be forged.

--Marc Pollack and Simon Glickman