Napster to court: Labels are overzealous

In its second brief detailing its compliance with a judge's order to block copyrighted materials from its service, Napster said the record labels suing it have "placed a serious and inappropriate economic and physical burden on Napster, (resulting) in significant overexclusion of legitimate ... files."

The brief, submitted Wednesday to the Ninth Circuit of the US District Court, alleges that though Napster has taken action to block infringing files for its system, the record labels have not held up their end of the injunction order by Judge Marilyn Hall Patel in early March. That order requires the record companies suing Napster -- BMG Entertainment , Warner Bros. Music Group, EMI Group, Sony Music Entertainment and Universal Music Group -- to provide artist/song title combinations, filenames and proof of ownership to Napster in order for those songs to be blocked. Napster then has three days to add the songs to its "negative database," the database of blocked material.

Napster said in its brief, however, that the record labels have made only "meager attempts" to comply with the injunction and that it is blocking more songs than it ought to be because of poor work on the part of the labels.

According to the brief, the record company lists "reflect ...no human attempt ... to ascertain the actual identity of the work," but rather have used Napster's own search engine to compile their lists, thus creating lists which block files that share only one or two words with those that ought to be blocked, i.e. songs by The Band are also listed with those by the Dave Matthews Band.

Another problem comes with works that have been recorded by multiple artists, according to the brief. An example given is Sony's claim to the song "God Rest Ye Merry Gentlemen." 96 files of the song are listed by Sony as items to be blocked, but in fact none contain the file Sony owns, according to Napster, resulting in "a clear violation of .... the Court's Orders, which requires the Plaintiffs to ascertain the actual identity of the file names before submitting them."

Labels have also sought to exclude files which were previously authorized by both bands and their record companies for distribution over Napster's service, the brief states.

As a result of discovering these mistakes, Napster hired Rajeev Motwani, a professor at Stanford University to audit the lists. Motwani found that as many as 700,000 files were being wrongly excluded.

In total, the company said it has blocked over 228,000 artist/song pairs and over 1.3 million total files since the filtering began two weeks ago. Activity on the network is also down significantly, it said, noting that the average Napster user is now sharing 50 percent fewer songs than before the filters were installed.

"Napster continues to comply with the letter and spirit of the Court's injunction," the brief said, noting that it has signed an agreement with Gracenote (formerly CDDB) to aid in filtering of copyrighted works and that it succeeded in persuading another file-sharing firm, Aimster, to remove the Pig Latin encoder the company had been providing for users to sidestep the filters.

However, Napster said it is working with the labels "at its peril." To rectify the problems that have surfaced, Napster asked the court to order the labels to review their lists before submitting them, to extend the 72-hour compliance period to allow Napster to validate the lists before implementing them and to order the labels to compensate Napster for the time and expense incurred by adding, validating and removing incorrect files from its database. Napster also asked that it be able to make the lists of songs submitted by the record companies available to the press, though not to the public. The labels have so far claimed that the lists are confidential.

Napster was sued in December 1999 for copyright infringement.

Napster, in Redwood City, California, can be reached at +1-650-373-3800 or http://www.napster.com/. The brief can be found at http://dl.napster.com/010320-compliance.pdf/.