The record industry cheered Tuesday when a federal judge unveiled a long-awaited preliminary injunction that could force Napster to pull the plug on its music-swapping service, but a closer look at the order reveals that the court made some concessions to both sides.
The injunction, issued by U.S. District Court Judge Marilyn Hall Patel, prevents the Netco from “copying, downloading, uploading, transmitting or distributing” copyrighted music, or facilitating such activity by its more than 60 million users.
In another bit of bad news for Napster, the company was hit on an additional legal front Tuesday, when the National Academy of Recording Arts & Sciences, the producers of the Grammy Awards, filed a copyright infringement suit.
The suit mirrors the recording industry suit, with the academy seeking to prohibit Napster from allowing its millions of users from downloading and sharing recordings of live performances aired at last month’s 43rd annual awards show.
The academy said it owns the rights to the works and has applied to copyright the material. Some of the recordings appeared on Napster immediately after the Feb. 21 broadcast.
Napster’s immediate concern will be complying with Patel’s five-page order. In it, she also sets out the procedure by which the record labels will notify Napster that it is using their titles. Companies must provide the title of the song, the name of the artist and the name of one or more files on Napster that contains the work.
The Recording Industry Assn. of America, a trade org that represents the five major label groups, immediately claimed victory.
“We are gratified the District Court acted so promptly in issuing its injunction requiring Napster to remove infringing works from its system,” said RIAA topper Hilary Rosen. “We intend to provide the notifications prescribed by the court expeditiously, and look forward to the end of Napster’s infringing activity.”
Napster, which has struggled with little success in the last few days to screen out some songs already identified by record labels, faces a contempt of court order if it can’t comply. Chief executive officer Hank Barry said Napster will follow the court’s order.
“The district court rejected the recording industry’s argument that Napster is inherently illegal,” Barry said in a statement. “As we receive notice from copyright holders as required by the court, we will take every step within the limits of our system to exclude their copyright material from being shared.”
Job to be shared
In fact, Patel told Napster and the labels to share the job of identifying variations in the file name and determining whether a questionable file actually contains a copyrighted song. Also shared is the burden of ensuring that no copyrighted songs are transmitted on the system.
Patel’s ruling omitted some of the harshest remedies suggested by RIAA, including a requirement to block all the files on Billboard’s “Hot 100” singles and top-200 album charts.
But the order does suggest that Napster will have the main burden of monitoring its servers for offending files, explaining that “it may be easier for Napster to search the files available on its system at any particular time against lists of copyrighted recordings provided by plaintiffs.”
RIAA attorney Russell Frackman said: “When you get down to procedures, the important aspect is that the court recognizes the duty and obligation of Napster to search and police its system. Their obligation starts when we give them the list.”
Patel also gave the labels the right to provide Napster with a list of titles in advance of their release. Napster must then block access as soon as an infringing file appears on the network.
Timetables to react
Once songs are identified, Napster has three days to block access. (The company doesn’t have to do anything until it has been notified). Speaking at a press conference in Washington. D.C., on Tuesday, Rosen said she wasn’t sure when such notifications would begin.
The record labels can go back to the court if they are not satisfied with Napster’s efforts to remove files. Within five days of the order, Napster must file a report identifying the steps it has taken to comply.
Patel’s order also provides for a technical expert to assist her, if necessary, with the arcana of enforcing her mandate on a case-by-case basis.
The injunction follows on the heels of a hearing last Friday in which Napster and the industry were invited to weigh in on the final scope of the ruling. At the time, Napster surprised industry watchers by saying it would begin voluntarily blocking up to 1 million infringing files on its own — a feat it had previously claimed was technically impossible.
But indications over the weekend were that very little actually had been blocked: Files from such prominent artists as Metallica and Pearl Jam were still readily available under several different filenames.
“If Napster complies with what this injunction says, it will be to our satisfaction,” said Howard King, an attorney for heavy metal band Metallica and rapper-producer Dr. Dre in their $10 million lawsuits against Napster. “It’s technologically doable. The question is, is Napster going to go to the necessary steps to do it?”
Patel got her mandate to craft the new injunction in February, when a three-judge panel of the 9th U.S. Circuit Court of Appeals asked her to narrow slightly the scope of her original order. The panel said the first injunction, issued last July, was “overbroad, because it places on Napster the entire burden” of policing the system.
Retreating from its usual media-blitz strategy, Napster issued only a short statement saying it would comply with the order but continue its ongoing efforts to reach a mediated settlement and woo the labels to its forthcoming membership-based service.
“As we receive notice from copyright holders as required by the Court, we will take every step within the limits of our system to exclude their copyrighted material from being shared,” the company said in a statement.
(Justin Oppelaar in New York contributed to this report.)