The plan was announced in a San Francisco District Court by Napster attorney David Boies, at a hearing where lawyers for the music-file-sharing service squared off with lawyers for the recording industry.
"We've had a group of people at Napster working night and day for two weeks trying to find a process to block these names," Boies told the court. Napster hoped to have completed the software implementation over the weekend just passed.
Boies described the software as a "screen between uploading and viewing what has been uploaded."
When Napster users search through each other's music files they are actually looking at a file index stored on Napster's central servers. While copyrighted songs may continue to be stored on users' hard drives, the screen proposed by Napster will prevent those songs from showing up on its indexes, meaning other users won't be able to download them.
US District Judge Marilyn Hall Patel called Friday's hearing to gather information that will help her rewrite a ruling issued last July that effectively would have shut Napster down for assisting in the widescale violation of music copyrights. The 9th Circuit of the US Court of Appeals, while agreeing that Napster fostered copyright violations, postponed that judgement on the grounds that it was too broad and asked her to rewrite her decision.
Judge Patel did not issue a new injunction from the bench Friday morning, but the move by Napster appears designed to help it prepare for any decision she may issue in the future. Patel gave no indication Friday when she will issue her revised ruling.
Napster's late move probably will have no effect on Judge Patel's ruling, said attorney Leonard Rubin, head of intellectual property at Chicago law firm Gordon & Glickson LLP. "I don't think it will effect one word of the primary injunction," he said.
At the hearing, disagreements between the lawyers for the two parties cantered on the question of which side should have to take the first step in blocking copyrighted material from the service.
"If (the RIAA) gives us the name of the file they want blocked, we'll police our system," Napster's Boies said.
The approach favoured by the RIAA is quite different, however. When Boies suggested that the RIAA should be required to show Napster that each copyrighted file exists on the system, Russ Frackman, attorney for the Recording Industry Association of America Inc. (RIAA), argued against such a plan.
"That's not an injunction, that's trying to solve the problem after the horse has already left the barn," he said.
Boies appeared to be making an attempt to satisfy the RIAA with the screening system. "This screen, when it goes up this weekend, will be updated all the time," he said.
Other arguments touched on how newly released music will be dealt with. The RIAA would like Napster to add the names of newly recorded music to its file index before those songs are actually released. Napster wanted to handle things differently.
"Once they show us that a user is offering a (copyrighted) file, we're going to block whatever name they give us," Boies said of the recording industry.
The surest way for Judge Patel to proceed would be to ask the record labels to provide a list of all their copyrighted songs, and then have Napster block everything on that list, according to Rubin. "That's the safest way, because that's the way it works for everything else covered by the Digital Millenium Copyright Act," he added.
Under US law, in almost all situations the burden lies initially with the copyright owner to provide notice of a violation, and then shifts to the service provider who must remove the offending material, Rubin said. "It shouldn't be a terrible burden for a record company to put a couple of its catalogues in an envelope and mail it to Napster," he said.
Napster Chief Executive Officer Hank Barry voiced his displeasure following the proceedings. The RIAA is seeking too powerful of an injunction such that "the only way we can follow it is to completely shut down."