San Francisco Napster this weekend will start preventing its millions of users from trading some copyrighted music, doing voluntarily what a court order will soon force it to do.
"We're in effect interposing a screen" between a user who has a song available for swapping and someone who wants it, Napster attorney David Boies said during a hearing to determine the terms of a preliminary injunction against the site.
The music-swapping service has been sued by most of the major record labels, which have charged that it facilitates copyright infringement. The labels asked for and received a preliminary injunction to halt the transfer of copyrighted music, which was delayed pending an appeal.
Last month, the appeals court affirmed the injunction but said the precise details still needed to be worked out, a process that began Friday. After more than two hours of extremely detailed argument, U.S. District Judge Marilyn Hall Patel said, "It's left to me to try to fashion an injunction that makes some sense, based on what I've heard." She gave no indication when she might act.
Napster, a 2-year-old free Internet service that has been in litigation almost since it was developed by college student Shawn Fanning, has always maintained that it didn't know precisely what music was being swapped through it. Napster is a central directory that allows its users to find each other.
Now, with Napster largely quashed legally, it says it will be able to distinguish between copyrighted and noncopyrighted songs. "The screen, which is going to start out sometime this weekend with millions of (file names), is going to be added to all the time," Boies said.
But the lawyer also said that the more songs the system tried to block, the more its usability would be undermined. Much of the hearing consisted of wrangling between Boies and Recording Industry Association of America lawyer Russell Frackman over how Napster would know whether a piece of music was copyrighted.
With new albums by such popular artists as Madonna, for instance, the labels want Napster to ban them pre-emptively, before users try to make them available on the service. But Napster is proposing that the labels first have to see evidence that such music is being swapped, and then they'll prevent it within three business days.
"That's fixing or trying to fix it after the horse has left the barn," complained RIAA lawyer Frackman.
Both in court and at a news conference afterward, Boies and Napster officials were noncommittal as to precisely when this weekend the changeover would begin, whose music was involved, and how extensive the filtering will initially be. There are an estimated 1 billion song files available through Napster, many of them duplicates.
"We think that the screen has the potential to be effective but we'll see," said RIAA president Hilary Rosen. "We gave them almost 6,000 tracks. ... They've already got a lot to get started with."
Napster chief executive Hank Barry said there has been no real progress toward a deal with the record labels. The company's offer last week of a $1 billion settlement in exchange for the right to continue operating as a paid service was promptly rejected.
"We're fighting to keep the Napster community together," Barry said. Napster claims in excess of 60 million users, although independent estimates peg it at perhaps a fourth of that.
Even if the smaller number is the accurate one, few new entertainment technologies have garnered so many fans so quickly and been so controversial. The record companies and many artists thought their work was being stolen; Napster and its admirers maintained it was all about sampling. Sharing music through the Internet only increased the desire of users to eventually purchase it, Napster argued.
No matter what exact form the injunction takes, the free-for-all period is ending. "It will not be the same," Boies said. "No doubt about it."