Napster judge issues new injunction

The injunction puts the burden of notification on the recording industry, requiring that the plaintiffs in the case against Napster must provide four things to Napster for songs to be blocked: the title of the work to be blocked, the name of the artist, one or more filenames the song was available as on Napster, and certification the plaintiffs own the work.

Under the injunction, Napster will have three business days to "prevent such files (identified by the plaintiffs) from being included in the Napster index," in which case Napster would use its "screen" to prevent other users being able to see the specific file in any database, thereby making it impossible to download.

One analyst was surprised that the judge appears to be letting Napster's blocking software serve as the main source of blocking titles. "I certainly don't think the blocking has been very effective so far, people are already getting around it," Malcolm Maclachlan, electronic media analyst with IDC, said.

Maclachlan also questioned whether this would protect Napster from future liability. "I wonder what happens if the recording industry goes back in a few months and says it doesn't work," he added.

Judge Patel also stated in the ruling that the two sides must work together in "identifying variations of the filename(s), or of the spelling of the titles or artists' names" of the songs in question.

"If it is reasonable to believe that a file available on the Napster system is a variation of a particular work or file identified by plaintiffs, all parties have an obligation to ascertain the actual identity (title and artist name) of the work," the ruling said.

The injunction is a middle ground between the proposed injunctions drafted by Napster and the recording industry, and sticks to what Judge Patel implied she would do when both sides appeared before her at a hearing last Friday.

The burden of ensuring no copyrighted work is transmitted over Napster is shared between the industry and Napster, with the industry being responsible "to provide notice to Napster" and Napster being responsible for "policing the system within the limits of the system."

A lawyer who has followed the case expected the recording industry to show up at last week's hearing with songs to be blocked on the assumption that Patel would issue a ruling requiring them to do so.

"What's interesting is that I thought the record companies would have gone into court on Friday with a list of songs," said Leonard Rubin, head of intellectual property at the Chicago law firm Gordon & Glickson LLP. "I think they knew that was going to be the ultimate ruling."

Also, had the companies had the lists ready, they would have swamped Napster with requests, Rubin added.

"Let's assume the plaintiffs simultaneously present their lists tomorrow," he said. "How is Napster going to have the manpower to prevent access to all of them within three working days?"

"We are gratified the District Court acted so promptly in issuing its injunction requiring Napster to remove infringing works from its system," Hilary Rosen, president of the Recording Industry Association of America (RIAA) said in a statement Tuesday. The RIAA represents the recording industry, while the actual plaintiffs in the case are individual recording labels.

Napster was not immediately available for comment.

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Douglas F. Gray

PC World

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