The Napster Hearing

Since it is hard to know what really goes on inside a courtroom without actually being there, I decided to go to the Napster hearing in February. This article is a detailed description of what happened there, along with my own experiences mixed in. It is long, so if you're looking for a summary of events, go to the sources folderand read an article about the Napster hearing.

As I turned at the corner of Larkin and Golden Gate Street, I noticed an ominous looking building in front of me. It was well over ten stories tall, and was rectangular shaped. The color was an obsidian black, and even the windows had a shade of gray. As I walked towards the building, I noticed video cameras and reporters setting up. I realized that this was the courthouse. It did not look like any other courthouse I had seen. Most courthouses I had seen were low to the ground, and usually had more classic architecture. This courthouse was tall and intimidating. It seemed to be the last place I would want to go if a hearing involved myself.

I approached the entrance, walked through the rotating glass doors, and noticed the metal detector station, which was much similar to the type used at airports. The only difference was that here there were six security guards here, and everything that was metal had to go through an x-ray. I tried to take everything metal out of my pockets; my wallet, keys, even pens with metal caps. But as I walked under the scanner, it beeped. So the guard brought me aside and used a hand scanner on me. He seemed to mutter something, but then he just told me to move along. I gathered my stuff, and proceeded towards the elevator.

As I walked, I noticed around thirty cameramen to my left. They were obviously waiting for an important person to arrive, because nothing else was happening. Then I realized that I had no idea where the courtroom I wanted to go to was. So I walked over to the directory and searched for the name of Judge Marilyn Paytel Hall. I found nothing, so I looked for someone to ask. Before I could do that, my dad caught up with me and told me that he had heard one of the cameramen mention the seventeenth floor. So we got into the crowded elevator and reached the seventeenth floor. When the doors opened, I saw that the architecture inside the building was not like the exterior architecture. It was bright, but it was not distracting or flashy. It was just there.

When I exited the elevator I overheard the people in front of us say that the hearing was being held in courtroom three. We followed them up to the entrance, where we were met with three security guards. We squeezed ourselves into the line, and waited for the others to enter. We asked for public seating, and were immediately let in. At the back row of seating, I made a right and walked through the tight aisle. My dad and I reached the end of the row and sat down.

Once I sat down, I noticed how large the courtroom was. There were around seven rows of public seating, with each one seating ten to fifteen people each. Then there were the two tables, one for the defendant and one for the plaintiff. These tables were crammed with lawyers from each side. The RIAA side had around eight, and the Napster side had five. On the left of the two tables were the seats where a jury would usually sit. But these were also used as public seating. At the front of the room, raised high, was the judge's chair. It looked much more comfortable than the rock-solid benches we were sitting on. Below the judge was the recorder's seat, along with a witness stand and another seat. I looked up at the ceiling and noticed that it was about three times the height of an average ceiling. There were very bright lights there, which would eventually prevent me from falling asleep by the end of the hearing. The architecture was the same as in the hallways, but it somehow retained the ominous feeling of the exterior.

Three people to the left of me, there was a young man in his early twenties. He told me that he worked for Napster, and if I wrote down my name and address, he would send me a Napster T-shirt. I did so by writing my name and address on the back of an orange folder he gave me. Even if I didn't learn anything from being here, at least I got a T-shirt.

Finally, the hearing was ready to begin. The judge, Marilyn Hall Patel, entered from the left door at the front of the courthouse. She walked up to her high seat and sat down just as the clerk loudly said, "All rise." Everybody in the courthouse stood up. She gathered a few papers, and then said, "You may be seated."

"Before anything goes on the record, I would like the members of each party to state their name and the party they represent. Then we may proceed." said Justice Paytel.

The various lawyers proceeded to state their name and party. Most of them spoke quietly, so I was only able to catch two names: Howard Ring- Attorney representing Dr. Dre and Metallica, and Julie Greer- Attorney representing independent labels.

Next, Justice Paytel says that it appears that both sides are close to an agreement. The purpose of today's hearing was to determine what will be workable. There will be a preliminary injunction, but it will not be issued today.

Justice Paytel precedes to question the lawyer representing the "Big 5" record labels. The first issue covered is on the record labels' claim to a class-action ruling. Through listening to the lawyers, I found out that instituting a class-action ruling against Napster would mean that the ruling made my Judge Paytel would apply to all record labels; not only the ones which are represented in today's hearing. This would be because record labels would be considered a class of businesses, and among them, there is general interest to protect copyright material. The effect of this would be that if another record label's music appeared on Napster's servers, the same conditions would apply to that music that would apply to music from a label represented in this case. The ruling would essentially affect all record labels.

At this point I looked around the audience, and tried to find the mood of the people in the courthouse. Amazingly, they seemed to provide an ominous feel similar to the exterior of the courthouse. There were no smiles, no frowns, or any facial expressions for that matter. Everyone was just listening, waiting for bad news. It was almost the type of crowd you would find at a funeral. After all, this could be the death of Napster.

The next issue covered was one that I thought to be quite absurd, and so did Napster, Justice Paytel, and my dad. Napster had requested in its proposal that the record labels provide a list of copyright violations in computer readable format. This seems reasonable, right? The record companies did not think so. They claimed that it was too much of a burden to provide the list in computer readable format, and that they had already provided a hard copy. I wonder if it ever occurred to the record companies that somewhere, on some hard drive of theirs, the list was already in computer readable format. Apparently they did not. This complaint by the record companies seemed like they were whining like four year-olds. Providing the needed information benefits them, and it only requires an e-mail. How hard is that for five multi-billion dollar companies to pull off? Appearing to be very confused about the record companies argument, Justice Paytel decided to move onto a more important subject.

This subject was how to identify copyright violations on Napster's servers. This was the area where "the gloves came off" and the lawyers stopped being articulate and polite and started truly arguing and getting aggressive. The record labels had provided song name, album name, artist name, and label name, for 55,600 songs they say are on Napster servers and violate copyright law. The record labels' proposal would also include the Billboard charts and other accessible and reliable sources as evidence for copyright violation. This would mean that any time at which Napster knows of a copyright violation, they would have to screen that song within 72 hours or risk a copyright infringement lawsuit. The problem with this would be that 90% of the music on Napster violates copyright. There are 60 million users on Napster, with each one sharing an average of 200 files. So that would mean that Napster would be forced to block 10.8 billion files, mostly by using their own resources. This would not be, as the 9th Circuit called for, a shared burden. The burden would almost solely be on Napster, who has limited resources, and would be much less on the Big 5.

As I watched the lawyers respond to questions, I could tell by the tone of their voice that both sides were frustrated. The tone of their voice was as if they were teaching someone who wasn't listening how to read. Neither side seemed to be getting to their goals. The record labels wanted to shut down Napster, but due to the ruling of the 9th Circuit, Justice Paytel could not do that. Napster just wanted to finish the case without getting dealt any more blows, but the case kept going. So much for common ground.

Napster's proposal on the subject of copyright violation would force the record labels to provide them with all of the names of songs that violate copyright. Napster would not have to search through other sources, because if the record labels wanted the song off of Napster, they would have to identify it themselves. To me, this sounded like a much more reasonable proposal. For example, if a thief steals money from a bank, the bank is responsible for informing the police of the crime; not the thief. To ask Napster to take songs off of it's own servers without being asked or ordered to do so is much the same thing.

The next issue brought up by Justice Paytel was how Napster would block copyright infringing songs. According to the record industry, Napster can easily block shared files without a slowdown of the servers or a change to the system. The lawyer representing the record companies said strongly, "It's their system, they know how it works, they can find a way to block files, and it is their responsibility."

But Napster claims that it cannot block files accurately and efficiently without either a monumental change in the system architecture or severe system slowdowns. According to Napster, there are two linked answers to this. The first is that because Napster only connects users with other users and the actual files never run through their servers, they cannot use the advanced technology that the record companies claim they can. This includes fingerprinting and other technologies which analyze the song data to identify it. This leaves them only one way to check for copyright violating music. That way is by searching through user-made filenames. The disadvantage of this is that because Napster users create these filenames, they can be inaccurate so that simply misspelling a word, or putting a slash after a file can get a song past screening. It also poses another problem. Songs which have been performed my multiple artists under multiple labels may become blocked unintentionally. This is because a song may have been performed by an artist under a represented label and an artist who does not belong to the label. The result is that both files are screened out, even though only one violated copyright. The example that lawyers for Napster used was Silent Night, a classic song that has been recorded hundreds of times by many different artists. Seven out of ten recordings will most likely be owned by a represented record label. But the other three songs are not copyright protected. Blocking filenames containing Silent Night blocks files that should not be blocked, eliminating music that should pass through screens.

Napster's statements are all true, but it puts them in a hole they have dug themselves. No matter what, blocking files will be Napster's responsibility. They cannot make excuses for themselves, because their fate is already determined in this area. The lawyer representing the record labels said, "Napster has chosen the hardest way to block files from being shared, and that's fine with us if it works. But no matter how hard it is for them, this is still piracy."

Now I felt as if the record labels had gained the edge. Napster desperately tried to argue more points about users logging on and off, and other technological issues, but it failed to impress the judge as being reasonable.

Through watching and hearing the lawyers argue for about an hour, I noticed that the audience appeared to be extremely bored with watching and listening to the hearing. Many people stood up and left the courtroom, but returned shortly. Many people shifted around on the uncomfortable benches, only to find that there was no way to sit on them and feel comfortable. I was also beginning to get very uncomfortable. It felt odd, but I was actually getting tired sitting down. I felt as if the bench was draining energy from me. If the seats only had padding. That would feel so much better.

The next issue was raised by the council for the record labels. It was about preventive blocking of files. Under the record labels' proposal, this would force Napster to put screens on music that was not on the servers, but could potentially infringe copyright if it were to appear on the servers. An example that the record companies used was Madonna's upcoming album release. According to the record labels, it would help them and Napster to put a preventive block on Madonna's songs to prevent any piracy at all to occur. Then there would be no infringement for Napster to worry about, and they would not be rushed to put a screen on the music. Napster claims that they only are required according to the 9th Circuit's ruling to block infringing music- not potentially infringing music. Personally, I agree with the record labels on this issue. It does prevent piracy better, and it benefits Napster by giving them more time.

After this point, the hearing seemed to repeat itself, except this time neither side's argument was organized. The lawyers seemed tense, and they were not speaking nearly as eloquently as they had in the first half of the hearing. They beat down on the same issues, except instead of being precise and making their points with targeted accuracy, they took a large club and whacked at the issues.

After allowing the repetition of the arguments go on for much too long, Justice Paytel brought the two sides back into the important issues.

After not speaking at all since stating her name an who she represented, Julie Greer, attorney representing independent labels, raised two important and surprising issues.

The first issue was how independent artists felt about Napster. According to her, independent artists would be interested if they were paid the proper royalties. But with Napster set up the way it is now, they are not interested because there is not a reliable way to collect their royalties.

The second issue was a complete surprise to almost everyone in the courtroom, including Justice Patel. Mrs. Greer claimed that Mp3.com had removed tags indicating copyright protection from independent artists music. According to her, this violated their contract. Therefore, she said that Mp3.com should be a defendant in this case.

Not quite knowing what to think of what had just been said, Justice Patel moved onto the subject of the future of this case. She requested that a meeting on where to go in the case would be scheduled within the next few weeks, although she did not specify a date. Then she said that the court was in recess. Everyone thought that was odd, because a recess usually means a short break. But the audience left anyway, because most of them knew that the hearing had already gone two hours past its scheduled time. The mixed gathering of people wandered toward the four elevators and filled each one to maximum capacity. I entered the back of one of them, and waited until I got to the lobby.

When I got out, I turned right and was confronted with a blockade of cameramen who were all waiting for the representatives from each side to exit the elevator. Immediately after we exited, Hilary Rosen, President of the RIAA came out and was swarmed by the fierce blockade. She seemed to take it all in stride and kept calm, seemingly ignoring the cameras. I followed the group outside, where I was immediately met with a sharp and cold wind. There were even more cameramen outside. As soon as Mrs. Rosen arrived, technicians started to set up the cameras and microphones. It appeared that Mrs. Rosen was going to make a statement about what had happened at the day's case. I got about three people away from Mrs. Rosen, but I still could only hear a few words of her statement. Also, the pole to a shotgun microphone was only three inches above my head, so it was hard to move around. Because I could not hear what she was saying, I inched my way out from the crowd and walked to the other side, where David Boise, CEO of Napster, was speaking. While I was attempting to listen to him speak, I noticed that I was also standing next to Shawn Fanning, founder and creator of Napster. I felt that that was pretty cool. After all, he is in a sense the founder of popular online music. I was still unable to hear, so I gave up and left the courthouse. Hey, at least I got a T-shirt.