Song remains the same with Napster
Ken Freundlich, copyright attorney, Schleimer & Freundlich
As promised in court last Friday, the company voluntarily began screening out some songs that had been identified as copyrighted by record companies and artists.
But at least in its first version, the filter appeared to have serious holes in it. Many of the songs that are blocked are still easily available, as their song titles have minor misspellings that are still picked up in Napster's apparently error-tolerant search engine.
"It's a start, but I think they need to work a little harder," said Howard King, a Los Angeles entertainment attorney who has fought for more than a year to halt unauthorized song swapping on Napster on behalf of clients Metallica and Dr. Dre.
Napster's filtering attempts come as the company fights for its life in a court battle that promises important consequences for online copyright law.
At issue now in the case is how much responsibility Napster and possibly other file-swapping companies will be forced to take on in policing their networks for copyright infringement.
For months, Napster has said it could not effectively filter for copyrighted works without shutting down completely.
That stance changed last month after a federal appeals court dealt the company a major setback, finding the file-swapping service contributed to massive copyright violations by guiding its members to music files over the Web. A three-judge panel returned the case to the trial court to impose an injunction ordering Napster to block songs "within the limits of the system."
Tip of the iceberg?
In effect, the court must now decide if Napster's solution implemented this weekend goes far enough, or whether harsher remedies that could effectively force the service to shut down must be imposed. Either way, the court will write what is now a technological patch into an order with the force of law behind it.
Copyright holders made it clear Monday that they felt Napster should be held to a higher standard when federal district court Judge Marilyn Hall Patel issues her official injunction ordering Napster to block songs within the coming days or weeks.
"At that point, it's no longer voluntary, and if they violate the order they will be in contempt of court," King said.
Even if Napster escapes a harsher remedy, the company won't be out of the woods. After the injunction order, Napster faces a trial in which record labels are seeking billions of dollars in damages for alleged copyright violations that have already occurred over the network.
A Napster spokeswoman said the filtering technology had started to go into effect around 10 p.m. Sunday night, rippling across the company's dozens of servers that are used to link people searching for music with those who have songs stored on their computers.
In addition to blocking songs by Metallica and Dr. Dre, the filter includes songs by artists such as The Beatles and Jimi Hendrix. But the screening process does not include a master list of 5,600 songs recently submitted to the company by the record labels. Napster says it did not receive specific file names as part of this list, which it says is necessary to prove that the copyrighted songs have been posted on the service.
Built by the company's programmers in the weeks since an appeals court decision made it clear that some filtering would finally be necessary, the screen blocks specific song titles from being visible in search results. A person might be offering Metallica's "Enter Sandman" to the world, but because that precise song title is in the database of filters, it would be invisible to outside computers, for example.
But as those songs vanish, they are leaving echoes behind that are just as strong as the originals. A search for "Enter Sandman" returned several songs mistitled "Enter the Sandman," making it just as easy as ever to find and download the song, for example.
Not every song blocked could be found, however. Several Metallica songs could not be found through any variation of searching and spelling.
The issue is sure to come up as the two sides fight over how the official preliminary injunction, which is expected any day, is to be implemented.
Record companies have argued that it is up to Napster to block the songs no matter what the file names might be. Napster has said that the record companies must identify specific file names--such as "Enter the Sandman"--to minimize the chance of blocking songs that are not copyrighted.
The ability of the search engine to return even badly misspelled songs may bolster the record companies' argument, however. If songs are clearly available even if a text filter is in place, an injunction will be of limited practical use.
Other technologies have been suggested as ways to identify songs, however. These range from "fingerprinting" a song based on its audio characteristics to using the identifying characteristics of a computer file that are exchanged between computers whenever files are sent over a network.
Napster users began discussing ways to get around the filters on the company's bulletin boards Monday morning, with several people suggesting ways to tweak file names so they would slip through the company's screening.
Others noted that simply misnaming files couldn't replace an unfiltered Napster, however.
"Good idea," wrote a "Hank Liddell" in response to a proposal for encoding file names. "Please explain how to disseminate this code to a sufficient number of users to keep the service useful, and keep the plan a secret from Napster and the record companies. If you can answer both of those, then you have something workable."
Representatives at the record companies said they were continuing to monitor the service.
"We expect (Napster) will honor the representations they made to the court," Hilary Rosen, chief executive of the Recording Industry Association of America, said in a statement. She did not comment on how the filtering was working, however.
The rigidity of Napster's text-based filter has already sparked some playful civil disobedience from others in the file-swapping community.
Napster rival Aimster, which offers a similar service that allows individuals to trade files with other people on their instant-messaging buddy lists, posted a piece of software it says can beat Napster's filters. Dubbed the "Aimster Pig Encoder," the software changes the file names of songs inside a computer user?s Napster directory into something like Pig Latin. "Hello," for example, would be transformed into "elloH."
The company is also taking aim at a broader controversy in copyright law, however. Federal law bars anybody from breaking through or helping to break encryption designed to protect copyrighted works. This simple Pig Latin system could be viewed as such an encryption system, and thus illegal to break through or explain publicly, the company contends in an online list of frequently asked questions.