While US District Court Judge Marilyn Hall Patel declined to amend last month's injunction which divides responsibility for identifying those works between Napster and the record labels, she did signal her impatience with Napster's apparent inability to block some copyrighted songs from its service.
Carey Ramos, a New York lawyer representing songwriters and music publishers, presented evidence to the court which he said reveals that more than 1000 music files that were supposed to have been blocked by Napster's filters are still being traded among its users. Judge Patel's response was a terse one.
"I think this is disgraceful," she said. "You'd better find a way to get them off the system."
Judge Patel will call on the assistance of a court-appointed moderator, A. J. "Nick" Nichols, who is expected to help her decide on the best way to prevent Napster from trading copyrighted songs. On Tuesday, she ordered Napster and the RIAA to each appoint their own expert who will meet with Nichols to discuss the filtering system and other technology issues surrounding the case.
No timetable was provided for that meeting, and Judge Patel indicated that she will not alter her injunction until Nichols has met with the experts from each side. "I am not amending the injunction," Judge Patel told the court Tuesday.
Nichols, a Silicon Valley veteran who holds an engineering Ph.D. from California's Stanford University, has been studying the case for at least two weeks at the request of the court, although he was officially named as moderator Tuesday. His duties will likely include helping Napster and its legal foes to identify some middle ground, as well as assisting Judge Patel by surveying the problems with filtering songs and examining how well each party is working to address the matter.
Napster faces the possibility of being slammed with further litigation, as some independent musicians and music publishers have amended their current lawsuits by asking the court to give them class action status. That would open the way for additional members of their particular "class" to join the lawsuits.
Judge Patel gave no indication Tuesday as to which groups might be awarded class action status. However, legal observers here at the 9th Circuit Court of Appeals for the Northern District of California said music publishers stand a greater chance of being awarded class action status since members of that class would be easiest to identify.
Between 16 March and 2 April, Napster blocked more than 1.7 million file names, so its number of files shared per user decreased more than 50 per cent, a Napster spokesman said Tuesday.
Furthermore, the company has seen a reduction in its user count and a decline in the reliability of its service as a result of the filtering measures it has taken, according to Malcolm Maclachlan, an electronic media analyst with IDC in Framingham, Massachusetts.
"It is kind of interesting to look at how this is going to go," Maclachlan said earlier Tuesday. "The filtering itself does not seem to have worked too well. Instead, it seems to have slowed down the network and made downloads drop."
The filtering techniques employed by Napster have not removed as many songs as some hoped. Users, like Maclachlan, complain that the filters just slowed network speeds to the point where many downloads fail before they are completed.
"The drops have gone way up," he said. "The irony here is that the filters seem to have destroyed Napster instead of fixing it."
Judge Patel potentially could ask Napster to use other types of audio recognition software to ban protected songs from its site. However, Maclachlan thinks that approach would also slow Napster's network significantly.
Napster seems intent on continuing its legal fight against the RIAA and others -- a move that Maclachlan believes could pay off if it can stay afloat for the duration of the legal proceedings.
"If they could just keep 5 per cent of their users through all of this, it would be a coup," he said.
James Niccolai in the San Francisco bureau of IDG News Service contributed to this report.