Napster Downloads Continue Virtually as Usual
March 5, 2001 -- And the bands play on.
Napster today was offering all sorts of music despite promising to start banning millions of copyrighted tunes. Searches for Metallica and Dr. Dre — two artists who have been outspoken critics of the online music swap shop — turned up hundreds of copies of their songs this morning.
But Ric Dube, analyst for Webnoize, a Cambridge, Mass.-based research firm specializing in digital entertainment, says his found two Metallica songs the system did appear to filter out: "One" and "Nothing Else Matters."
"Something is there and working," said Dube, "though it's not blocking the ten most popular songs in the country or plenty of other songs by those two artists."
Roy Orbison tunes were available as well, even though a copyright group sent e-mails to Napster last week, requesting the music be removed from the service because of alleged piracy.
Friday, U.S. District Judge Marilyn Hall Patel held a hearing on an order that would halt Napster from allowing pirated music to be listed on and traded through its Internet service until the end of a lawsuit. The Recording Industry Association of America is suing the online company for alleged copyright infringement, and requested an early injunction to stop the music piracy now. (Click here for a complete timeline.)
While the trial has yet to begin, Patel has all but commanded the service to stop trading copyrighted files without permission. The judge is recrafting the order, which is expected any day now, that could put very tight restrictions on how the company is currently operating.
“While we await the judge's modified injunction,” CEO Hank Barry said in a statement posted on the company’s Web site, “We will begin later this weekend to block the transfer of file names we have previously received from copyright holders.”
Napster lawyer David Boies told Judge Patel during Friday’s hearings the company would put filtering software online to block the trading of pirated music.
“Sometime this week we will have completed the software implementation so that these file names will be blocked,” Boies told Patel. “This screen will start sometime this weekend.”
But apparently Napster is behind schedule for or a full implementation of its self-imposed rock block.
A Model of Imperfection
Although Napster offered to implement the filtering software this weekend, lawyers for the music industry still weren’t satisfied with Napster’s effort. Having argued in the past that Napster should have had such a system in place when it first went online, now, they say the filtering is not enough. The industry wants Napster to block songs in advance of new album releases.
But the appeals court in its ruling of the injunction wrote, “we place the burden on plaintiffs to provide notice to Napster of copyrighted works and files containing such works available on the Napster system before Napster has the duty to disable access to the offending content.”
In essence, the court ordered “dual burdens,” says RIAA lawyer Russ Frackman. “A burden on us to some respect to identify copyrighted works and on Napster to patrol its system and not to turn a blind eye anymore.”
In a Feb. 12 ruling, the court acknowledged the technological limits of the system, recognizing the inexact science of a service that offers music files named by users and stored on their machines.
Napster’s filtering strategy based on file names won’t screen out all pirated music. Typos and misspellings could easily fall under the radar screen so that Dr. Dre’s “Forget About Dre” could slip through if it shows up as a slightly incorrect variant like “ForgotAbout Dre.” Napster is aware of this limitation, Boies said, and will try to take into account common or obvious misspellings. Users could also put filenames in code, but then searches would be much more difficult to conduct, he said.
The company could also employ human filters, who would scour Napster's servers looking for song titles and artists who had not given permission to be listed.
Other, more advanced blocking software could entail audio fingerprinting. In this scenario, Napster would create a database of what they call music DNA, or audio fingerprinting. These files would contain an identity of an individual song based on the bits that comprise it, says Dube. When a user logs onto the system, Napster would compare the files on the user's computer to its database and identify songs not allowed on the system. It would then block those infringing songs from the list of songs.
Napster has provided few technical details of how it intends to keep pirated music off its servers, but time may be running out for the company. Judge Patel's recrafted injunction is expected any day.
More negotiations are scheduled for this week. But it's difficult to see how far these will go at this late point. The company is at odds with itself between its business strategy and its legal strategy, said Dube.
With its self-imposed filtering efforts, "[Napster] tried to compromise a conflict between best possible legal strategy and best possible business strategy," said Dube. But only an all-out shut down might woo the record industry to the negotiating table, experts say.
"It's a matter of the labels stepping up and recognizng Napster has the strongest brand in music services and they're not going to recreate a brand as powerful," said Dube. "The Napster sensation cannot be duplicated on a commercial level.