Recording Industry Turns the Screws in Napster Case

Labels and music publishers have asked a judge to make the song-swapper pay for copyright damages - and they cite e-mail by Napster staffers as evidence.

The recording industry has asked a federal judge to find Napster liable for copyright infringement, bolstering its case with quotes from company employees who called music traded on the system "pirated."

In a motion for summary judgment filed Tuesday, record companies and music publishers argued that Napster was aware of "overwhelming" copyright infringement by its users. The motion, made public Wednesday, offers for the first time a snapshot of the depositions and evidence that plaintiffs have been collecting in the case since they sued Napster in December 1999.

One key piece of evidence cited by the recording industry was an e-mail discussion that included co-founder Shawn Fanning. "Admitting we know Napster is used for the transfer of illegal MP3 files might not be the best thing to do... I mean... obviously people are going to use it for that purpose," Fanning said in the e-mail exchange, according to the motion.

In a memo describing Napster's business plan, co-founder Sean Parker also provided evidence of the company's knowledge of infringement, the motion states. "Users will understand that they are improving their experience by providing information about their tastes without linking that information to a name or address or other sensitive data that might endanger them (especially since they are exchanging pirated music)," Parker is quoted in the motion.

Representatives of Redwood City, Calif.-based Napster declined to comment on the motion.

If the record labels and music publishers are successful in winning the summary judgment, they will not have to go to trial on liability issues. The court still would have to hold another proceeding to determine damages, which could total in the billions of dollars given that Napster's software has been downloaded nearly 70 million times.

The record labels and music publishers requested a hearing Oct. 1 before U.S. District Court Judge Marilyn Hall Patel on the summary judgment motion.

Although such motions are routine, record industry attorney Russell Frackman says he believes that the plaintiffs have a particularly strong case. He cites not only the comments from Napster's own employees, but also recent court rulings against the company. In February, the U.S. Court of Appeals affirmed in part an injunction issued by Patel against Napster, finding that the company "knowingly encourages and assists the infringement of plaintiffs' copyrights." Patel followed with a modified injunction in March that Napster subsequently appealed.

Meanwhile, Napster shut down completely in July, after Patel told the company that it could operate only if it could guarantee that it is blocking 100 percent of all copyrighted songs. Napster also is appealing that order, which it called "draconian" in a brief filed Tuesday. In that brief, Napster asks the appeals court to decide how much it must police its service and charges that Patel has delegated "impermissibly broad" authority to a technical expert, Dr. A. J. Nichols, who has advised that Napster change its architecture.

The U.S. Court of Appeals for the 9th Circuit has scheduled a hearing Dec. 10 to hear arguments in the Napster case. Meanwhile, the company has been working on a legal subscription service that it plans to launch by the end of the summer

By Ronna Abramson