Second wave of suits crashes against Napster

As the music-swapping company's hopes for a win in court dim, the line of companies and musicians looking for their piece of the legal action is growing by the day.

John Borland Staff Writer, CNET News.com
John Borland
covers the intersection of digital entertainment and broadband.
John Borland
3 min read
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As Napster's hopes for a win in court dim, the line of companies and musicians looking for their piece of the legal action is growing by the day. On Wednesday, online music distributor EMusic added a lawsuit, just hours after producers for the Grammy Awards chimed in with their own.

Although the lawsuits contribute little that is new to the company's legal troubles, they do threaten to make life more difficult--and potentially expensive--for the troubled file-swapping service. However, because Napster plans to be actively blocking music, any damages could be minimal, some attorneys say.

"It's going to be an expense defending" against them, said Leonard Rubin, an attorney with Gordon & Glickson. "But there is some question as to what these new plaintiffs can actually receive."

The effect of the new wave of Napster foes won't be felt fully until it's known how many record companies, musicians, distributors and others will jump on board.

A critical date will be April 10, when a federal court will hear separate arguments on whether to allow music publishers and independent musicians to turn their lawsuits into class actions. If the court allows that to happen, it could exponentially expand the universe of people with claims against the company.

Regardless, independent musicians or record labels that haven't already filed suit against the company can do so with reasonable chances of success, Rubin said.

The trick for this late wave of plaintiffs will be to prove that Napster meant to violate copyrights, bringing the case into the expensive legal category of "willful infringement."

If the copyright holders can prove that Napster had such an intention, they could win damages of up to $150,000 per song traded. If not, that could drop to just $500 per song.

Early court documents filed by the record industry helped convince U.S. District Judge Marilyn Hall Patel that Napster was aware that copyrighted works were being traded on the service. But until the 9th U.S. Circuit Court of Appeals in San Francisco ruled that Napster members were almost certainly involved in direct copyright infringement, the company had argued that its own actions were wholly legal. That could make "willful infringement" difficult to prove, some attorneys say.

Nevertheless, the sheer mass of new plaintiffs piling into court against Napster will cause some logistical and financial headaches--and will certainly help speed the disappearance of music from Napster's service.

EMusic has already submitted a list of close to 30,000 songs to Napster, which until recently the company said it had no technology to block. At least some of those songs were included in the first filter thrown up by the music-swapping company last Sunday.

"For over six months, Napster Inc. has flatly rejected our requests to filter out and effectively block EMusic tracks from being traded on their system without our permission," EMusic Chief Executive Gene Hoffman said. "In light of this position, Napster's ability to quickly implement such a filtering system over this past weekend shows the company's true motive--to unfairly build a business upon the copyrighted works of others."

EMusic's suit was filed in a San Francisco court, and is likely to appear in front of Patel alongside the other Napster lawsuits.

Producers of the Grammy Awards sued Napster on Tuesday, contending that copies of songs performed at last month's music awards ceremony were being traded through the service. Those included performances by U2, Madonna, and a duet by Elton John and Eminem, which now may not be released commercially, according to officials of the National Academy of Recording Arts and Sciences.