INTERNET Judge orders Napster to block access to copyrighted songs

Napster has more than 67.5 million registered users. SAN FRANCISCO CHRONICLE SAN FRANCISCO -- A federal judge has ordered Napster to block access to millions of free downloadable songs, a ruling that could gut the popular online swapping service of the music that made it an international phenomenon. Judge Marilyn Hall Patel signed a preliminary injunction late Monday that forces the Redwood City company to filter copyright-protected songs controlled by the world's biggest record companies and music publishers. Patel's ruling doesn't shut down Napster, but it does give music companies a sharp tool to undercut, or even slay, the growing online music giant. "This is a pretty severe blow to Napster," said Mark Radcliffe, a partner with Gray Cary Ware & amp; Freidenrich LLP of Palo Alto. "Basically, they're going to be the walking dead. It's going to be a nonbusiness." Requests: Patel's order requires the record companies and music publishers that have sued Napster for copyright infringement to tell Napster exactly which songs and artists they want blocked. Once Napster receives the official notice, the company has three business days to block the songs, although Napster's own voluntary attempts to filter songs by Metallica and Dr. Dre since Sunday night have proved spotty at best. Patel's order, which is effective immediately, comes less than a month after the federal Court of Appeals in San Francisco affirmed her previous ruling that Napster could be found liable for copyright infringement. The appellate judges, however, ruled that Patel's original preliminary injunction, issued in July, was too broad and ordered her to modify it. Napster Chief Executive Hank Barry said the firm will follow the judge's order, but will still press the Court of Appeals to reconsider the case. Attorneys for Napster and the music industry are scheduled to meet Friday with a federal mediator. "We will take every step within the limits of our system to exclude their copyrighted material from being shared," Barry said in a statement. "We will continue to seek a settlement with the record companies and to prepare our new membership-based service that will make payments to artists, songwriters and other rights holders." Phenomenon: Napster became a grassroots phenomenon because it lets users easily swap free copies of songs stored on their computers in the mp3 format. The music industry, though, protested that Napster was nothing but a haven for mass music piracy. As of Monday, Napster claimed more than 67.5 million registered users, and the database of songs shared by those members has grown to include about any song ever recorded. Meanwhile, the National Academy of Recording Arts & amp; Sciences Inc. sued Napster Tuesday for copyright infringement because bootleg recordings from the annual Grammy Awards show are being swapped. Academy President and CEO Mike Green said the organization planned to compile performances from this year's show, especially the Eminem-Elton John duet, for a CD to raise money for needy artists. "Before we had finished the mixing, every performance from the show was being swapped on Napster," Green said. Patel's preliminary injunction did represent a slight concession to Napster. Her order to require the copyright owners to first give Napster the title of each song, name of the recording artist, the name of one or more of those files found on the Napster system and a statement certifying the song has been pirated, matched what the firm proposed last Friday in Patel's court. In addition, Patel ordered the firm to expand the Napster-designed filtering software installed Sunday night. Music industry lawyers had asked Patel to require Napster to automatically delete all songs on the Billboard magazine weekly top hits lists and install more technically sophisticated blocking software. Patel did grant a request by record industry lawyers to be able to tell Napster that an album that is about to be released should be blocked. Because Napster files are often misspelled or mislabeled, either accidentally or intentionally by Napster users, Patel also said "all parties shall use reasonable measures in identifying variations of the file names." "It appears to the court ... that it would be difficult for plaintiffs to identify all infringing files on the Napster system given the transitory nature of its operation," Patel wrote in her five-page order. "This difficulty, however, does not relieve Napster of its duty." Approval: The head of the record industry's powerful trade group applauded the injunction. "We intend to provide the notifications prescribed by the court expeditiously, and look forward to the end of Napster's infringing activity," said Hilary Rosen, president of the Recording Industry Association of America. A spokeswoman for Bertelsmann AG, which has partnered with Napster to help develop a new, legal version of the service, said her company had no comment about the injunction. Whitney Broussard, a copyright expert with Selverne, Mandelbaum & amp; Mintz of New York, said he believes the new order does give Napster a chance to stay alive until it can develop a membership-based system that will appease the record industry. "The original order from Patel said Napster would have to make sure that no copyrighted works are transmitted," Broussard said. "Now, the court is saying Napster and the record industry have to cooperate with each other to do what they reasonably can do to find what they can find."