NAPSTER: COMPLIANCE AND COMPLAINTS

Yet even as Napster's legal team took pains to clarify the technology and methodology behind its cooperation with a court-ordered injunction (see story, 3/6), the report also swiped at the label groups Napster is ostensibly trying to satisfy.

The introduction notes that the second report deals with violations reported by rights-holders between 3/9 and 3/15, including lists from A&M, Sony, EMI and BMG.

Yet just after mentioning its removal of "over 200,000 artist/title pairs and almost 1.2 million normalized file names" since the first report—and the swappery's agreement with the online-database folks at Gracenote to locate variant file names for illicit material—today's tome takes issue with the accuracy and completeness of the majors' submissions.

Napster's gripes include the assertion of "hundreds of thousands of inaccurate file names," "no human review of the data," "sloppy or uncoordinated effort… in providing pre-release notices" (all leveled at A&M) and a failure on the part of all plaintiffs to provide variant spellings of unauthorized works.

This alleged non-compliance with the specifications of the injunction, the document charges, "has placed a serious and inappropriate economic and physical burden on Napster, resulted in significant overexclusion of legitimate user files on the Napster indices and produced an environment that will wrongly cause significant user frustration with the Napster system."

Garsh, that David Boies sure do talk purdy.

Napster further says that it has compounded Gracenote's efforts with variations of own, all entered into its "negative database" of excluded music—along with titles of yet-to-be-released music by marquee acts—and made IM application Aimster remove its Pig Encoder program, which translated file names into Pig Latin.

But virtually every example of Napster's apparent eagerness to meet the injunction's demands was matched by a slap at the labels. "Napster had assumed that Plaintiffs had made a good faith effort in evaluating file names to ensure that they accurately corresponded to the lists of Plaintiffs' protected works. Unfortunately, Plaintiffs' submissions demonstrate that such reliance was misplaced."

Them's fightin' words—but the embattled netco, despite the conciliatory rhetoric of its principals and willingness to follow the letter of the injunction, has seized every opportunity along the way to gain the upper hand in public perception.

The record industry, meanwhile, has followed suit by alleging Napster had simply failed to comply with the court's directive; the RIAA plans to lodge a complaint to this effect with the court, according to the Financial Times. "They have been notified," reads a quote from the organization's Jano Cabrera in the article. "They have to remove 500,000 copyrighted works. They have not done so. It's as simple as that."

Other folks are pissed, too, notably artists who allege that music they expressly approved for inclusion on the service are being unfairly blocked. The report acknowledges as much, stating, "Wrongful exclusion of works of authors who have signed on with Napster injures Napster's goodwill with those artists and Napster users."

We could go on and on, but you can check out the complaint yourself by clicking this link.

Such parrying will no doubt continue when CEO Hank Barry and unspecified others testify before the Senate Judiciary Committee's April 3 hearing on digital music, chaired by that unabashed Napster fan, songwriter and entertainment-industry critic Sen. Orrin Hatch (R-Utah).

Users who've logged on to Napster of late have encountered (in addition to slower searches and even an outage on 3/14) radically fewer tunes by big-name acts. The dogged downloader must be particularly creative in coming up with "variant" spellings; for example, we turned up a trove of Beatles tracks by entering "Bealtes." Got that, Napster folks?

What will all this mean for Bertelsmann, which continues to back Napster's efforts to go legit even as its label group, BMG, presses on with its litigation? Recent chatter suggests the German media conglom's boss, Thomas Middelhoff, may be losing ground in his attempts to cut the deals necessary for a licensed swappery (see story, 3/22).

Meanwhile, EMusic—"Putting the ‘E' in Music,"—has jumped back into the fray, launching proprietary software that it says can continuously search Napster for EMusic-controlled MP3s. The software also automatically reports on infringements to Napster so that the swappery can filter out the offending tracks. The downloadable-music seller says that it has already notified Napster of 75,000 different filenames for 35,000 copyrighted songs. Or, roughly, .00001% of the tracks available on Napster.

Wait a minute—didn't these guys announce this initiative a while ago?

"This is somewhat different," explains EMusic spokesman Steve Curry. "We have modified the technology not to report user names anymore, but to look for specific file names and various ways a file may be misspelled. Then it automatically reports these files (by name) to Napster for blocking."

In the interim, gather ye 1910 Fruitgum Company tracks while ye may.

—David Simutis contributed to this report.