- Napster and music labels represented by the Recording Industry Association of America (RIAA) were to square off again yesterday in a San Francisco court to debate how effective the music-swapping company has been in implementing a filtering system to block copyrighted material from its users.
Napster could face more litigation, as some independent musicians and music publishers are expected to shift their current lawsuits by asking courts to give them class-action status. That would open the way for additional members of the "class" to join in the lawsuits.
Judge Marilyn Hall Patel in the 9th Circuit Court of Appeals gave Napster a set of instructions for blocking songs last month. Following her ruling, Napster began pulling only the songs where the RIAA provided the artist name and song title for the music it wanted removed. Napster argued that only those specific titles could be taken off its servers, as users were free to change song titles and artist names on their own. Tracking all of the user variations would be far too technologically difficult, Napster claimed.
Napster has looked for misspellings and some other possible variations and managed to block hundreds of thousands of songs.
Patel will now have the help of court appointed mediator A J "Nick" Nichols who will serve as a technology expert, surveying the problems with filtering songs and how well both parties are working to solve the technological problems in the case.
"What we will see...is how much work Nichols has been able to do in the last week or so," says PJ McNealy, an analyst with research firm Gartner Group. "It will be his eyes looking over the technology issues."
McNealy does not expect Napster to face a new set of restrictions that would force it to close its virtual doors as a result of the hearing.
"I think you will see some finger pointing on both sides, but I don't think [it] is shut-down day," he says.
Between March 16 and April 2, Napster blocked more than 1.7 million file names and so its number of files shared per user decreased more than 50%, according to a Napster spokesman.
Napster has seen a loss of users 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 International Data Corporation (IDC).
"It is kind of interesting to look at how this is going to go," Maclachlan says. "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 says. "The irony here is that the filters seem to have destroyed Napster instead of fixing it."
The court 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. While it faces many challenges, Napster appears to be in the music-swapping game for the long haul.
Napster seems intent on continuing its legal fight against the RIAA and others -- a move that Maclachlan believes could pay off when the litigation come to a close.
"If they could just keep 5% of their users through all of this, it would be a coup," he says.
Also, just hours before the hearing, the company announced the acquisition of some of Gigabeat's technology and engineers. Gigabeat's cofounders will join Napster and work on the delivery and personalization of music content, according to a news release.