Judge Calls Napster's Filtering Efforts 'Disgraceful'

Plaintiffs say thousands of files that should have been blocked are still available.

SAN FRANCISCO — A federal court judge expressed outrage Tuesday over the number of copyrighted songs available on Napster a month after her order to remove thousands of titles, saying, "Maybe the system needs to be shut down."

"This is disgraceful that there are this many on the system," Judge Marilyn Hall Patel told Napster attorney Robert Silver. On March 2, Patel issued an injunction against Napster that required the file-sharing service to filter out copyrighted content based on lists of songs supplied by plaintiffs in the case.

An attorney representing music publishers and songwriters, including legendary songwriting team Jerry Leiber and Mike Stoller, told Patel that 2,000 different files representing numerous versions of the Leiber/Stoller works "Unchained Melody" and "Jailhouse Rock" were available through the Napster system as recently as Monday. The songs were among those on a list of more than 6,000 titles given to Napster by music publishers two weeks ago.

"With all the notice you've had, if there are this many 'Unchained Melody's still on there, you better find a way to get them off," Patel said.

Napster attorney Robert Silver said the company has been filtering out 1.3 billion files per day — a figure that includes multiple instances of the same song. He also said the service's song index — the database of shared files that users access when searching for songs — has 50 percent fewer filenames than it did five weeks ago.

Attorney Russell Frackman, representing four of the five major record companies (Bertelsmann Music Group has tentatively agreed to drop its suit against Napster), said Napster refuses to apply filtering systems such as MD5 and fingerprinting, which could identify music tracks by analyzing sound rather than filtering out filenames.

Napster maintained that the recording industry wants to make compliance with the injunction so costly that it will put the company out of business.

Patel may not think that is such a bad idea.

"Maybe the system needs to be shut down," she said. "Think about it exponentially — if you had a thousand of these [files] out there yesterday, think of how many [will pop up in the future]."

Patel ordered each side to assign a representative to meet with A.J. Nichols, the court's newly appointed technical expert, to discuss filtering strategies.

Testimony was also heard from a group of independent artists trying to bring a class action suit against Napster, and from 1960s rock impresario Matthew Katz, who claims the rights to the psychedelic-era band names "Moby Grape" and "It's a Beautiful Day" (Moby Grape bandmembers maintain otherwise).

Katz is suing Limp Bizkit frontman Fred Durst — for promoting Napster on a sponsored tour — as well as individuals such as Fanning, interim CEO Hank Barry, Fanning's uncle and other investors, for allegedly contributing to Napster's contributory infringement on his copyrights and trademarks.

While Patel did not take Katz' case too seriously, Frackman said one or more of his clients may bring a similar case against principal individuals responsible for Napster's conduct.

In a statement issued after the hearing, RIAA Executive Vice President and general counsel Cary Sherman accused Napster of "nitpicking over every detail" of Patel's order and encouraged Napster to devote its "full energies into launching a new, legitimate business."

BMG has agreed to drop its suit once Napster adopts a business model that pays royalties to labels and artists. The label group's parent company, Bertelsmann AG, announced an alliance with Napster in October to assist in developing a copyright-friendly version of the service.

(For complete coverage of the Napster saga, check out MTV News' "Napster Files.")