Napster's efforts to filter copyrighted music from its
file-swapping network have failed, and the company must modernize its
screening system or transform its trading system altogether, record
companies told a federal court Tuesday.
In a scheduled filing with the U.S. District Court in San Francisco, the
Recording Industry Association of America (RIAA) said that Napster was not
complying with a court order requiring it to block copyrighted songs from
"Virtually all of music that we (identified for) Napster, that they claimed
they filtered, is still available on the system," said RIAA Chief Executive
Hilary Rosen. "We are saying there is no effective filtering out of
copyrighted works on Napster. We believe it is willful."
The filing marks the latest salvo in the battle over just how much
filtering Napster is legally required to do. In its court filing last week,
Napster argued that its filtering is working as well as can be expected and
noted that the record labels themselves were not wholly complying with the
The industry association asked the court to add new teeth to its order,
taking advantage of technologies that can identify songs more precisely
than the company's existing text-based screening system. If these can't be
implemented, then Napster should pull the plug on its unregulated service,
allowing only authorized songs on the file-swapping network, the RIAA said.
Napster CEO Hank Barry disagreed, saying the labels needed to work with the
file-swapping company, rather than against it.
"The RIAA's call for a fundamental change in Napster's technology is
unsurprising," Barry said in a statement. "It is an attempt to change the subject rather than cooperate with Napster as the injunction specifies."
The company has already blocked more than 200,000 songs, and more than 1.6
million file names, Barry noted. That has led to the average total number
of songs available at any given time dropping from 370 million to 160
million, he added.
The filtering system now used by Napster is text-based, screening out the
names of artists, titles and files that have been identified by the record
labels. Independent research company Webnoize has said that the filters are
resulting in nearly 25 percent fewer daily Napster users, although the
number of files shared by each person has climbed.
The RIAA says it has identified more than 600,000 individual works at this
point. But Napster has said that many of these have come in as simple names
of songs and artists, without being tied to any specific file on Napster.
Under the court's order, this is not enough to block a song.
"The aggregate impact of (the record labels') misinterpretation of the
court's injunctions and inattention to the accuracy of their compliance
efforts has placed a serious and inappropriate economic and physical burden
on Napster," the company wrote in its filing last week. This has
"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."
Much of the attention in the last few weeks has focused on the availability
of misspelled works--finding songs by "Madona" instead of "Madonna," for
Napster says it has been working hard to find these misspellings, with
40,000 instances of misspelled songs names and 10,000 misspelled artists
names now in its filters. It has used a database of such variations
provided by Gracenote, as well as the manual work of more than a dozen
employees searching the system, the company says.
But the RIAA says that's not enough, since many of the works are still
easily available in some form. It asked the court to require more advanced
technology such as audio fingerprinting, which identifies a song based on
its audio characteristics, or "checksums," which uses information
transferred between computers to verify file integrity as a unique
If Napster can't do this, then it should be forced to move to a model where
only content that has been pre-approved by copyright holders can be traded
in the system, the RIAA said.
No immediate decision on the RIAA's proposals is expected by the court.
Napster is scheduled to make another response to the industry's filing next
week, and the two sides will meet in court again on April 10.
However, many of the technical issues may ultimately be worked out by a mediator appointed by the court to deal with the technological details of compliance. Federal Judge Marilyn Hall Patel asked both sides to
suggest names for such a figure shortly before issuing her injunction
against Napster early last month.
Napster has suggested several such figures. The RIAA has not yet given the
court any names, a spokesman said.
The RIAA will file comments with the 9th U.S. Circuit Court of Appeals on
Wednesday, arguing against Napster's request for a review of its case by a
full "en banc" panel of judges, the next highest level in the appeal process.