Napster faces order to stay offline
By Ron Harris
Associated Press
SAN FRANCISCO — Napster escaped a legal mess yesterday when it settled a suit filed by the band Metallica, but the embattled song-swapping company still faces a federal judge's order demanding the service remain offline until it prevents all unauthorized song trading.
Napster requested an emergency stay of U.S. District Judge Marilyn Hall Patel's latest order pending appeal from the 9th U.S. Circuit Court of Appeals.
On Wednesday, Patel told Napster to stay offline until its file-sharing software is perfected. Napster attorneys called Patel's edict from the bench out of step with an earlier appeals court ruling.
"This draconian relief is particularly unjust in light of the fact that Napster's newly implemented filtering technologies have an error rate of less than 1 percent," Napster's attorneys wrote in their request for an emergency stay to Patel's order.
Napster chief executive Hank Barry said his company would grudgingly play by the new rules
"Napster will obey this order, as we have every order that the court has issued. We believe the judge's order is inconsistent with the 9th Circuit's decision and wrong on a variety of other grounds," Barry said.
Yesterday also brought an end to copyright infringement lawsuits filed against Napster by Metallica and rap artist Dr. Dre. Financial terms of the settlement were not disclosed, but as part of the agreement Metallica will allow some of the band's songs to be traded on Napster's system once a legal business model has been launched.
"I think we've resolved this in a way that works for fans, recording artists and songwriters alike," said Lars Ulrich, Metallica's drummer.
Napster has been offline since July 2, when the Redwood City-based company took down its computer servers after its upgraded audio fingerprinting technology failed to catch all of the copyright music being traded by online users.
Napster was ready to restart its service, claiming it had retooled the screening software to block more than 99 percent of unauthorized song files.
However, Judge Patel shot down the notion that Napster could quietly come back online without 100 percent effectiveness. She told the company not to restart the service until it could prove to her that no unauthorized song files would get through the system.
Napster sought relief from Patel's order by the end of today to avoid "irreparable harm" to its service, the company told the appeals court.
It means a further delay for Napster's return. Napster's user numbers had already been in decline since it began employing strict song-sharing guidelines earlier this year to block access to prevent copyright songs.
The number of Napster users and the songs shared among them fell drastically between February and June of this year. Many disgruntled Napster fans migrated to decentralized file-sharing networks made popular by software called Gnutella.
Gnutella and other similar programs like LimeWire and BearShare allow users to access an ever-changing network of servers to download image files and software programs in addition to MP3 song files.
Napster is still set to launch its much anticipated paid subscription service, due this summer along with two similar services by the major record labels.
The recording industry, which sued Napster in 1999 for copyright infringement, was elated with Patel's words from the bench.
Hilary Rosen, president of the Recording Industry Association of America, issued a statement which read in part:
"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. It is difficult for the legitimate online marketplace to compete with free."
