On Wednesday afternoon, U.S. District Judge Marilyn Patel again delivered a fierce blow to Napster, ordering the music-file-sharing software maker to remain off-line until it is able to ensure that unauthorized copyrighted material is eliminated from the site.
Napster has been offline since the beginning of the month, as the company prepares for its re-launch as a subscription-based service. The company informed Patel yesterday that it could promise ninety-nine percent effectiveness in blocking pirated material, but she ordered the site to stay down until 100 percent compliance is achieved. Patel also assigned a technical expert to further examine and assess Napster's system.
"Clearly the courts agree," said Hilary Rosen, president of the Recording Industry Association of America, who filed suit against Napster in 1999. "In order for that marketplace to flourish, intellectual property must be defended rigorously. Today's ruling sends a clear signal to all infringers: Any attempt to hide illegal activity behind the shield of technological innovation will not be tolerated."
Napster CEO Hank Barry said the company plans to obey the order, though it will appeal the ruling, claiming Patel's decision contradicts a ruling by the 9th Circuit Court of Appeals that allowed the site to remain active. Barry also maintained that the site had been acting in good faith, instituting a new file-identification system that has "never been attempted on such a broad scale." He also claimed that the company made the decision to move offline upon the realization that not all unauthorized songs were being filtered. "I am extremely proud of what Napster's team has accomplished in developing this technology," Barry said. "We will continue to work with the technical expert and explore other options for resuming transfers as soon as possible."
But Rosen suggests that beyond initiating piracy, Napster has been delaying the progress of legitimate online music ventures. "While we appreciate that Napster is attempting to migrate to a legitimate business model, its inability to prevent copyright infringement from occurring on its system has only hampered the development of the marketplace in which it now hopes to compete," Rosen said. "It is difficult for the legitimate online marketplace to compete with free."
Despite the recent court troubles, Napster remains a partner with Bertelsmann, AOL Time Warner and EMI, with plans for a subscription service launch this summer that would make available songs by artists from those three major labels, including the Dave Matthews Band, Madonna and thousands of others for a fee that would compensate the artists.