Who's responsible?
Much of the argument Friday centred on who would bear responsibility for identifying copyrighted files on Napster's network. The record industry proposed that it submit artists' names and titles of songs and albums and that Napster then be required to find and block those songs. Napster asked that it be required to block only specific file names identified by copyright owners.
"This is a case that should be settled. We are fighting to preserve the Napster community and the Napster file-sharing experience," Chief Executive Hank Barry said.
Napster's attorneys said only songs that had actually appeared on the company's service should be included in the injunction. Record industry attorneys said that would be tantamount to allowing too much infringement to occur.
"That makes no sense," said Russell Frackman, lead counsel for the record labels. "That's trying to fix it after the horse has already left the barn."
At Friday's hearing, Sony, AOL Time Warner, Vivendi Universal and EMI pushed well beyond the dictates of the 9th Circuit decision in their quest to shut Napster down, insisting on an injunction that it would be impossible to comply with other than by shutting down the service.
Patel must decide which of those interpretations comes closest to meeting guidelines for the injunction set out by the 9th Circuit last month, or she must craft a different standard.
According to 9th Circuit's instructions, the record labels must "provide notice to Napster of copyrighted works and files containing such works available on the Napster system before Napster has a duty to disable access to the offending content. Napster, however, also bears the burden of policing the system within the limits of the system."
The attorneys also sparred over issues such as how to handle proposed class-action lawsuits from independent labels and music publishers. Those issues will be discussed further at a hearing April 10.
The two sides will also meet in front of a mediator March 9.
Record industry executives said they were encouraged by Napster's filtering plan but said it did not go far enough.
"What Napster said today was what we've all known for years, that they can filter songs," said RIAA chief executive Hilary Rosen.
Although filtering file names could put a crimp in the service, Boies said the arrangement preserved its essential features.
"This does not destroy what Napster is," Boies said, adding that the system is still a peer-to-peer system between individuals and will still have more music than any other alternative.
