Napster loophole left open by judge

Associated Press

SAN FRANCISCO — A federal judge hearing the recording industry's case against Napster said yesterday that unless an appellate court clarifies its ruling in the case, she can't force the online song-swapping service to identify and remove all copyright music files.

For the moment, the memorandum keeps in place a loophole that allows Napster users to continue downloading copyright music.

The record labels want Napster to remove any copyright songs they identify on its servers, a position U.S. District Judge Marilyn Hall Patel has strongly endorsed in a series of rulings. But removing the songs has proven difficult, since Napster users constantly change file names, often inserting intentional typos, staying one step ahead of Napster's efforts to remove songs.

Napster has said it can't keep up with every variation on its network.

The 9th U.S. Circuit Court of Appeals upheld Patel's July order that Napster remove all copyrighted works from its file-swapping site, but with several key caveats. The appellate court said the Recording Industry Association of America must "provide notice to Napster of copyrighted works and files containing such works available on the Napster system before Napster has the duty to disable access to the offending content."

Napster recently began using Gracenote, a Berkeley, Calif.-based company that keeps a database of recorded music, to help screen songs. But Gracenote doesn't compensate for changing song titles and artist name spellings that users twist to get around the screens.

For example, a search for the Beatles hit "Happiness Is A Warm Gun" returns no results in Napster's search engine. But type in "Fab Four" as the artist and the song appears, along with many other Beatles hits.

Unless record labels can prove that a particular file name is infringing — in this example, that these individual "Fab Four" song files are really Beatles' songs — Napster is not obligated to remove them.