There is no subtlety, no mistaking the position taken by the Recording Industry Association of America (RIAA) in its latest legal brief: "Napster has failed to abide by either the letter or the spirit of this Court's Preliminary Injunction." The brief was filed today as part of the injunction handed down earlier in March by US District Court judge Marilyn Hall Patel [cq] and details the RIAA's view of Napster's compliance with her order.
The RIAA's brief said that Napster has intentionally shirked its obligations as laid down by the injunction. The brief attacked the filters Napster uses to block copyrighted material from its service, its efforts to block files and the claims made in the compliance brief that Napster filed last week .
Napster's interim chief executive officer (CEO) Hank Barry late Tuesday responded forcefully to the RIAA's brief in a written statement.
"Napster is aggressively complying with the injunction with significant measurable results," Barry's statement said. The RIAA's call for a change in the filtering technology Napster uses is "an attempt to change the subject rather than cooperate with Napster as the injunction specifies."
Napster was originally sued for copyright infringement in late 1999 by BMG Entertainment , Warner Bros. Music Group , EMI Group, Sony Music Entertainment and Universal Music Group the five major labels represented by the RIAA.
According to its brief, the RIAA and its member record companies have undertaken a "gargantuan effort" -- 1,800 man-hours by the record labels and an additional 600 hours by the RIAA -- to provide Napster with 8,001,913 filenames corresponding to 328,074 works to be blocked. However, of a list of 675,000 specific songs -- which were included whether or not they were found on the system -- was given to Napster with the demand they be blocked, and all are still available on the network, as are more than 70 percent of the songs Napster claims to have blocked, said the RIAA.
The failure of the filters is due only in part to the technology that was chosen, the brief said. "It is doubtful that Napster's self-selected, technologically archaic filter could ever significantly limit access to plaintiff's music. Yet, Napster contemptuously refuses to employ an effective filter -- for fear that it might actually work."
In place of the filters Napster is using, the RIAA said that the company ought to base its exclusions of files on their checksums. A checksum is a unique, mathematically generated "fingerprint" contained in every MP3 that was created from the same CD with the same software. For example, if a user were to create an MP3 of Britney Spears' "Oops, I Did it Again," every copy based on that original file would contain the same checksum. Such a system would not add substantial burden to Napster, the RIAA contends, because the Napster software already relies on checksums and includes them in its database.
In addition to the technological failure of the filters, the RIAA said Napster has failed to block obvious filename variations, such as "Sweet Dreams Are Made of This," a variant of the Eurythmics' title "Sweet Dreams."
In his written statement Tuesday, Napster's Barry said, "In the three weeks since the court's injunction was issued, Napster has blocked access to over 275,000 unique songs and over 1.6 million unique filenames." Napster also has added more than 10,000 variations in artists' names and more than 40,000 variations in song titles, the statement said.
Napster welcomes any technology to block copyrighted works but believes the technical issues should be decided by an independent arbiter rather than by the RIAA, Barry said.
The RIAA's brief also addressed claims made by Napster in its earlier report, saying that "Napster's Compliance Report seeks to distract this court from Napster's almost willful disobedience of the Preliminary Injunction." The RIAA points out that Napster's claim that its users are sharing 50 percent fewer files since the filters were put in place means little since the company claims to have 70 million [m] users still sharing, on average, 110 files each. So, even with the filters, the RIAA said, there are 7.7 billion [b] files available on the network.
Barry's statement Tuesday claimed the average number of files being shared by each user has dropped from 198 to 74.
Napster's brief also focused heavily on the issue of over-inclusion, the unnecessary blocking of files. Napster claimed that as many as 700,000 files were being wrongly excluded. The RIAA pushed aside any such claims, saying that the problem is one of Napster's own making and "is the price Napster must pay given the intentionally infringing system it built."
Lastly, Napster also asked the court to allow it to make available to journalists the lists of artist/song title/filename combinations that the RIAA is seeking to block. The RIAA, in turn, said that Napster has already breached the confidentiality of the lists, though it failed to say how or where. The RIAA also said that the lists must remain confidential as publicizing them would allow users to work around them to share copyrighted works.
The RIAA also said that Napster has violated the court's injunction by allowing its users to employ the message boards at the company's Web site to discuss how to defeat the filters.
The brief concludes with the RIAA asking the court to force Napster to implement a better filtering system and says that if Napster fails to do so, or continues to violate the injunction, "the Court will have to consider additional remedies."
Stephen Lawson contributed to this story.
The RIAA, in Washington, D.C., can be reached at +1-202-775-0101 or http://www.riaa.com/. Napster, in Redwood City, California, can be reached at +1-650-373-3800 or http://www.napster.com/. The RIAA brief can be found at http://www.riaa.org/pdf/b032701.pdf