Napster's lawyers are back in court, asking a panel of judges Monday to clarify an injunction order that forced the company to shutter its file-trading network in July.
After a two-year legal fight between the recording industry and Napster, both sides continue to haggle over the particulars of an injunction issued in 2000 that placed the burden of removing copyrighted songs entirely on the file-trading company.
Napster allowed people to search for and download popular songs from other users. The company created the file-trading network without obtaining the permission of record companies, songwriters, and musicians who own copyrights to that music.
The filtering arguments are important for Napster and other services that offer digital entertainment through a network controlled in one central location; however, it's far from the most important issue in the case.
The Recording Industry Association of America, the trade group representing the music labels, asked for a summary judgment against Napster. If District judge Marilyn Hall Patel grants that motion, the Napster case would be over and the legal wrangling would be over.
"The summary judgment motion in front of Patel is the big event," said Fred von Lohmann, senior intellectual property attorney with the Electronic Frontier Foundation. "All of this other arguing is a bit puzzling because Napster isn't really functioning. It seems strange to go on with an appeal with this since the service is shut down."
It's also odd that this fight over filtering technology continues to take center stage in the file-trading wars, since the technology that allows people to swap digital entertainment has advanced far beyond what the Napster service offers.
The RIAA and movie industry's equivalent, the Motion Picture Association of America, sued MusicCity.com, Grokster, and Consumer Empowerment. These companies have either developed or distributed software that makes each individual person's hard drive act as a server, allowing people to trade music, movies, and other files.
Napster's service runs through a series of computer servers at the company's California headquarters. To shut down the network, somebody has only to turn off the servers.
However, "decentralized" networks where each individual's hard drive acts as a server would be much more difficult to shut down, said von Lohmann. Music City could go out of business and the file-trading network would continue to operate.
That distinction between a central service like Napster and a decentralized service like Music City might seem small, but von Lohmann said he believed it gives these networks a defense that hasn't been open to Napster.
Patel ruled early on in the Napster case that the company wasn't protected by the 1984 Sony Betamax decision. In that landmark decision, the Supreme Court ruled that VCRs were a legal consumer electronics product.
Since consumers couldn't use Napster without the company's centralized servers, Patel said its engineers could be held accountable for any piracy on the network.
"Music City isn't a music service," von Lohmann said. "It's not aimed at only music and MP3 files. They distribute a software product, and that is the same as people who distribute email programs or VCR.
"The Music City software has all types of noninfringing uses. This isn't about file sharing, this is about technologists being held accountable for end users."
The EFF and von Lohmann are representing Music City in its case.
As the Napster case has dragged on through the courts, the new services have more traffic than the original file-trading company ever had. At last count, over three billion digital files were being traded through the top four decentralized networks.
Since the music labels first sued the company in December 1999, the technology community and entertainment companies have debated the legality of Napster's business.
Instead of moving toward a trial where those issues will be determined, the case has bogged down. Later Monday, Napster lawyers are expected to argue that in order to filter copyrighted songs off its system, music labels should provide song titles, artists, and digital file names appearing on the file-sharing network.
Currently, the recording industry doesn't provide file names.
"We think the injunction is supposed to prevent harm from incurring," said Jano Cabrera, a spokesman for the RIAA. "Napster wants the recording industry to provide file names after the damage has been done."
The case has bounced back and forth between federal district court and the appeals court in an attempt to craft an injunction that would set up parameters for Napster to add filtering technology to its service. Patel has twice ruled that Napster should be responsible for removing infringing music from its service.
Each time Patel issues a ruling, Napster's lawyers have asked the Ninth Circuit Court of Appeals to modify that injunction. Monday's hearing is the second time the company has asked the federal appeals court to require the recording industry to provide file names.
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