For the past two weeks, Napster has been living under a preliminary injunction that allows it to operate, but which says it must block copyrighted songs that have been identified by the record companies. The major music labels have collectively sent the company more than half a million songs, a process that has severely reduced the amount of music available through the service.
But the record companies say Napster's efforts have not been enough. Too much of the music that is supposed to be blocked is still available, either outright or in easily located misspelled form, they say.
"At this point it is clear that Napster hasn't complied with the court's order," said Jano Cabrera, a spokesman for the Recording Industry Association of America. "We are going to spell out our concerns in detail" in the court filing, he said. The filing will be made as part of a previously set alternating schedule of legal updates made by both parties. Napster's next response is due April 3.
The filing is likely to spur a few new rounds of fireworks in the case, but such a move has been expected by most of the participants since the injunction was ordered. U.S. District Judge Marilyn Hall Patel, who issued the order March 6, also asked the parties to agree on a technically savvy mediator who could serve as arbiter in disputes such as this.
Napster had no immediate comment on the RIAA's plans, but it has filed several documents with the court indicating that it believes it is acting in compliance with the injunction.
The music-swapping company is struggling to keep up with both the lists of songs coming in from the record companies and the activities of music traders who are doing their best to develop tools to evade Napster's filters.
Chief Executive Hank Barry has said that many of the songs being submitted by the record companies have not complied with the terms of the court order. Nor have the record companies helped track down the misspelled variations of song or artist names that have slipped through Napster's text-based filtering system, the company said in a court filing Tuesday.
"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. 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."
According to Patel's order, Napster has an obligation to track down and block "reasonable" variations of artist and song names. The record companies themselves also are required to participate in this search, although the order stopped short of saying precisely how much action the labels needed to take to find misspellings.
Napster itself has taken some action to block misspellings, with employees manually seeking them out. It also has agreed to use a database containing millions of song name variations maintained by Gracenote.
But outside Napster members have also spent the last several weeks developing ways to evade these filters. Some basic techniques such as turning artist names into Pig Latin have largely, if not completely, been blocked by Napster. But more advanced means of encrypting file names are also on their way.
The filters are meant to be a temporary gesture while the case goes to a full trial, a process that could take months or years. But Napster has said it plans to take down its free service in July and set up a subscription service along with entertainment giant Bertelsmann.