SAN FRANCISCO — A federal judge gave the recording industry another victory in its bid to control digital music, issuing an injunction ordering Napster Inc. to block any copyright-protected songs from its service.
Once the record labels present Napster with lists of songs they want banned and proof that the labels own or control the rights to them, Napster has three business days to block the songs from its network, the judge said in a ruling posted Tuesday.
If Napster does not comply, the song-swapping service that has drawn more than 50 million free-music fans could be held in contempt of court.
The order effectively gives the recording industry control over the immediate fate of the Internet-based clearinghouse that turned music distribution on its head and cultivated a following of millions.
Napster is fighting to stay online and retain its popularity while promising to shift over to a subscription-based service. For that, it depends on the cooperation of the very music labels that sued the company to stop song swapping.
“I think Napster will surely make an attempt to comply,” said Phil Leigh, an analyst with Raymond James & Associates. “I think you have the self-preservation instinct at work here.”
Hilary Rosen, president of the Record Industry Association of America, said the record labels would quickly provide such lists to Napster. Napster officials said they had no immediate comment.
A lawyer representing heavy metal band Metallica and rapper/producer Dr. Dre in their $10 million suits against Napster praised the ruling and said his clients have been eager to get their songs off Napster for a long time.
“If Napster complies with what this injunction says, it will be to our satisfaction,” said attorney Howard King. “It’s technologically doable. The question is, is Napster going to go to the necessary steps to do it?”
U.S. District Judge Marilyn Hall Patel, issuing an injunction she reworked on the order of an appeals court, said the recording industry will have to notify Napster of the title of the song, the name of the artist and the name of the file containing the infringing material.
Napster began trying to weed out some copyright songs Sunday night, with little success, and it remains unclear how hard the company will have to work to block song titles that are slightly misspelled or altered to avoid the screening technology.
“We are gratified the District Court acted so promptly in issuing its injunction requiring Napster to remove infringing works from its system,” Rosen said. “We intend to provide the notifications prescribed by the Court expeditiously, and look forward to the end of Napster’s infringing activity.”
Patel’s latest ruling does not mean the Redwood City-based Napster has to shut down or turn itself off, stressed Eric Sheirer, an analyst with Forrester Research.
“What it does is give the record labels a great deal of power over exactly what songs are going to show up on Napster, how long they’re going to be there, and how usable Napster will be for the vast number of consumers that are on there now,” Sheirer said.
“The record industry has the advantage now of being able to get these songs off Napster anytime they choose. But if they do it now, consumers will flee to all these other alternative services where they won’t be able to control them.”
The 9th U.S. Circuit Court of Appeals ruled last month that Patel’s original injunction against Napster was overbroad because it placed the entire burden on Napster of ensuring that no “copying, downloading, uploading, transmitting or distributing” of works occur.
Now Napster shares the burden with the record labels. The labels must prove that they actually own the copyrights before Napster must begin searching its network to prevent the songs from appearing. Napster, meanwhile, has the responsibility for policing its system, and searching for song files that would reasonably be expected to violate copyrights.
Patel’s order also requires Napster to block transmission of identified copyright works even in advance of their public release. New recordings often end up in the hands of radio stations and music reviewers before they hit record store shelves.
Many of those songs, such as those on Madonna’s latest album, end up on Napster – which now has the additional burden of preventing those works from showing up on its system.
“To order otherwise would allow Napster users a free ride for the length of time it would take plaintiffs to identify a specific infringing file and Napster to screen the work,” Patel wrote.
No one knows just how much of the material being swapped by Napster users on the constantly changing network is copyright-protected, Sheirer said.
Music industry attorney Russell Frackman last week asked Patel to force Napster to begin its screening process by blocking the Billboard Top 100 singles and Top 200 albums.
The screening system Napster began phasing in Sunday night included various permutations and spelling of titles from Metallica and Dr. Dre. But searches of the network showed many of those songs were still appearing.
Meanwhile, Napster’s struggles have prompted users to flock to hard-to-sue alternatives that use freely downloaded software and decentralized networks, such as Gnutella and Napster clones.
A program called Napigator directed hundred of thousands of music fans to servers located around the world that can be tapped into using the Napster application. On Monday, more than 96 million music files being traded by more than half a million people through computer servers located as far away as Italy, New Zealand and Russia — numbers that rivaled Napster itself even as downloads peaked this weekend.
On the Net:
Recording Industry Association of America, http://www.riaa.org