Last Gasp for Napster?

Last year's media darling may be this year's has-been. Napster, the music file-sharing service that shook the music industry's foundations, remains shut down after US District Judge Marilyn Hall Patel ruled that it cannot resume operations until it can prove that no copyrighted songs can slip through its filter. In a closed session on Wednesday, July 11, Patel ordered Napster to stay offline until she authorizes it to do otherwise.

The 99.4% blockage rate that Napster has been able to achieve is insufficient, Patel stated. "We are approaching a system that has a zero rate of error," Napster attorney Steven Cohen stated. "According to what the engineers tell me, you'll never get to a zero because that would assume human perfection, and humans aren't perfect." Patel wasn't swayed by the human fallibility argument and sided with music industry attorney Russell Frackman who complained that even one unauthorized song could reach millions of people, thereby depriving the artist of his or her due compensation.

Napster's present filtration system has an error rate of only 0.02%, according to Cohen, as verified by monitors from the music industry, who found only 174 copyrighted titles among 950,000 Napster files. When that number reaches zero, Napster can rejoin the living, Patel stated. "While we are disappointed by this ruling, we will work with the technical experts to enable file transfers as soon as possible, and we are continuing full steam ahead toward the launch of our new service later this summer," stated Napster CEO Hank Barry after the hearing. Cohen said he would appeal Patel's ruling.

During its peak, Napster claimed millions of users. As many as 150,000 diehards remain logged on to the service even though it is inoperative, according to several reports.

In a related development, rock group Metallica and rapper Dr. Dre have settled their lawsuits against Napster. Songs by both will be blocked from the service, according to Napster spokesmen, and will be available again only after "an acceptable business model is in place." The service is said to be working with the artists to develop a feasible plan.

In addition, in London, on Tuesday, July 10, the day prior to Patel's ruling, Bertelsmann AG's BeMusic group announced a new management team to supervise the group's joint venture with Napster, a subscription service with a planned debut sometime this summer, as mentioned by Barry. Last year, Bertelsmann invested in Napster with the goal of exploiting its commercial potential. Bertelsmann hopes to bring its BMG Direct music club, CDNow online music store, and recently acquired music archiving service Myplay all under the BeMusic umbrella.