One small ISP, which doesn't want to be named for fear of Napster retribution, sought to block the music sharing service in order to unclog its network.
The ISP singled out Napster for a reason. The owner of the ISP, based in a small town on the US East Coast, noticed his network utilisation was going way up "within 10 minutes of seeing the school buses go by," resulting in his two T-1 lines being flooded with traffic. Was Napster to blame? Blocking it would be the only way to know for sure.
In spite of a resurgence of peer-to-peer applications, a quick search among vendors to find an inexpensive device that would either limit the amount of bandwidth per user, or filter out Napster traffic by assigning it lower priority than email and other bandwidth-friendly applications, turned up nothing. So he came up with a low-budget but legally questionable solution.
"Since I control [the] DNS [Domain Name System] for my entire network, I simply pointed to napster.com and changed www.napster.com to www.riaa.org," said the owner.
Sure enough, Napster traffic accounted for more than 90 percent of incoming traffic on that ISP's network during prime time hours of 6 p.m. to 10 p.m. Having established that Napster is a bandwidth hog, the ISP unblocked the site.
"As more and more users realise that Napster has no intention of compliance with the ruling [to move copyrighted songs off the service], I expect I'll have to block it again, unless my added bandwidth, due this week, proves to be sufficient. I don't think it will help much, personally," the owner said.
But in the future the ISP plans to look at other options besides blocking, fearing that DNS redirection is illegal.
A Napster spokeswoman had no immediate knowledge of any cases of Napster being blocked by ISPs, and no immediate comment about whether Napster would pursue legal action against service providers that block the service.
Legal experts said that Napster could indeed sue.
"The claim would probably lie in tortious interference with prospective economic advantage, which means that using wrongful means, or with wrongful intent, someone interferes with your prospective business opportunities," said Michael Jacobs, a partner at the law firm Morrison & Foerster and an expert on intellectual property rights.
It's too early to say if a claim like that would stand up in court, Jacobs said, but, for some small ISPs, landing in court would be an expense that could drag the entire company under.
Interestingly, the future relationship between Napster and ISPs could be defined in the realm of spam fighters.
A case in Colorado has pitted Mail Abuse Prevention System, a non-profit which is fighting spam, against 24/7 Exactis, a subsidiary of an online advertising firm 24/7 Media. Using a database compiled by MAPS, various ISPs blocked a number of servers on Exactis' network as relays for unsolicited bulk emails. Exactis sued in response, saying that it is not responsible for what customers are sending through its mail servers. Exactis is arguing that ISPs are engaging in illegal conduct by blocking Exactis' site by using MAPS' database, according to case documents. Exactis won a temporary restraining order against MAPS last November, with the case scheduled to go to trial in July.
Thus while small ISPs try to walk a fine line between an unclear legal situation and very real bandwidth bills, large ISPs are waiting on the sidelines.
"I am not familiar with these cases so I will comment in the abstract: I suppose it is within ISP's right to limit bandwidth, but it is also a customer's right to go and use a different ISP," said Dave Baker, EarthLink vice president of legal and regulatory affairs. To the best of Baker's knowledge, EarthLink has not investigated any means of blocking or limiting Napster traffic.
