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NAPSTER: PAY A FIN OR PAY A FINE?
Industry Lawyers Ask Judge For Summary Judgment Without Trial As Swapco’s New Chief Floats $5 Monthly Sub Model
"More Napster news? Bring it on," we hear you say.

And so we humbly oblige, reporting that while the RIAA on 8/7 requested a summary judgment in the industry’s suit against the once-mighty swappery, the netco’s new CEO was asking for $5 a month.

Industry attorneys filed their request with U.S. District Judge Marilyn Hall Patel, asking for a hearing on Oct. 1 to determine whether Napster, which disabled its file-sharing service in July and has not restarted it, can be held liable for damages related to copyright infringement without a trial.

The brief insists that the swapco was fully aware it was engaging in infringement and that it derived value from offering consumers unauthorized access to music. Copy from Napster’s own website promising users essentially all the music they desired is cited in the brief.

Patel issued an injunction against Napster last year, ordering the company to police its network to ensure that copyrighted material wasn’t traded. In July, Napster voluntarily went dark to work on transforming itself into a legit version. Unsatisfied with its less-than-100% compliance, the judge told the netco that it couldn’t relaunch the file-trading application until it was fully piracy-proof. Napster won on appeal the right to resume the swapping, but hasn’t gone back online with it yet.

Napster filed its own brief last night relating to Patel’s 100% order, and has four weeks to file a response to the industry’s summary judgment request. Here’s a fun snippet from last night’s filing:

"The lower court modified a preliminary injunction that this Court ruled was ‘overbroad’ because it impermissibly ‘place[d] on Napster the entire burden of ensuring that no "copying, downloading, uploading, transmitting, or distributing" of plaintiffs’ works occurs on the system.’ Id. at 1027. Although the district court attempted to craft a preliminary injunction that adhered to this Court’s directions and that imposed a shared burden on the parties, Plaintiffs vehemently objected to being required even to identify a single file on Napster that contained infringing material. The district court correctly rejected Plaintiffs’ invitation to rewrite this Court’s remand instructions and relieve Plaintiffs of that obligation."

There’s lots more purdy lawyer talk like that, but we can’t make heads nor tails out of it, and not just because our heads are in our tails.

If Patel does issue a summary judgment, Napster would of course be expected to appeal; a company rep declined to comment on the matter.

Undaunted by such machinations, Napster chief Konrad Hilbers told the German magazine Stern that the cost of a monthly subscription to the new, copyright-respecting version of the service would be about $5 per month. The company has made no official announcement regarding such a pricing structure.

"That $5 number is nothing new," says a Napster spokesperson. "It’s been floated before."

Countering interviewer Karsten Lemm’s claim that Napster is "praktisch tot" (practically dead), Hilbers touted the value of the Napster brand and emphasized management’s efforts to make a going of it. He also underscored Napster’s agreement with online subscription-service licensing collective MusicNet and with bunches of independent labels.

His remarks were much prettier in the original German.

Napster’s plan to allow trading of files only in the new .NAP format (rather than the ubiquitious and non-secure MP3), which would be tied to the service and which users could not burn to CDs or export to portable devices, has many observers wondering about its ability to generate a large subscriber base. Hilbers’ emphasis of the $5 monthly price tag—the low end of the $4.99-$9.99 range put forth a while back by ex-CEO Hank Barry—would seem to confirm this, as does his modest projection of the initial wave of paying customers.

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