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Napster Judge Utterly Frustrated

A federal judge overseeing the case against Napster on Friday essentially threw up her hands and appealed for help in stopping the exchange of copyrighted songs.

For the moment, her ruling guarantees Napster users can continue downloading copyright music at will.

Major record labels want the online music-swapping service to remove any copyrighted songs from its Internet site, a position U.S. District Judge Marilyn Hall Patel has strongly endorsed in a series of rulings.

But removing the songs has proved exceptionally difficult, since Napster users constantly make them reappear under different file names. Napster has said it cannot keep up with every variation.

On Friday, Patel said that unless an appeals court clarifies its ruling in the case, she cannot force Napster to identify and remove all those files.

In other words, for now, it remains the record labels’ burden to identify infringing songs on Napster’s ever-changing index of file names.

Patel invited the Recording Industry Association of America to “seek clarification in the court of appeals.”

The 9th U.S. Circuit Court of Appeals upheld Patel’s July order that Napster remove all copyrighted works from its file-swapping site. But the appeals court said the RIAA must “provide notice to Napster of copyrighted works and files containing such works available on the Napster system before Napster has the duty to disable access to the offending content.”

Napster’s interpretation: It has to screen out songs only after the RIAA identifies the specific infringing files, along with proof of copyright.

For example, thousands of Beatles songs are still being traded under the name Fab Four. Napster says that unless the record labels can prove that these are really Beatles songs, it is not obligated to remove them.

The recording industry argues that it need only provide the artist and song name, not the thousands of files on Napster’s indexes.

A recording industry spokeswoman sought to downplay Patel’s latest ruling. “Napster still needs to comply with the order,” Amy Weiss said.

Napster executives had no immediate comment while they reviewed the decision.

A total of 17 million Americans – 20 percent of all people using the Internet – used Napster in February, and despite court-ordered screening technology, 12 million people still managed to use it in March, according to the Jupiter Media Metrix research firm.

Meanwhile, other ways of trading music over the Web are gaining popularity. People logging on to Bearshare.com, a decentralized network of users communicating directly with each other, grew from 187,000 in February to 520,000 in March, the research firm said.

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