SAN FRANCISCO -- Attorneys for Napster and the recording industry sparred over whether a trial was necessary to determine if the song-swapping service is liable for copyright infringement damages, but a federal judge here made no ruling on Wednesday, and was ambiguous about which way she was leaning, as well.
The five major record labels are seeking a summary judgment finding Napster liable for infringing on the copyright of their songs -- this judgment would move the case to the damages phase, skipping a trial. Napster wants a trial, its attorneys said, because many "issues of fact" are in dispute.
But during an often jovial two-hour hearing, Judge Marilyn Hall Patel seemed to side with each party on various technical issues of copyright law, allowing each to later express optimism that Patel would rule in their favor. The judge gave no indication when she would decide.
Both sides had filed a thicket of legal arguments for their causes, but Patel said she "had done some culling," and she wanted to focus on just a few of the issues she thought were in dispute: whether the record companies did indeed own the claimed copyrights on the music in question, and whether they had prevented Napster from legitimately licensing the songs.
Celia Barenholtz, an attorney for Napster, argued that the court could not take as fact the record companies' ownership of all the songs. Depending on the kinds of contracts the companies signed with artists, the musician might indeed own the music, not the record company.
"So many works are claimed to be owned," she argued, "and there's been no evidence submitted into the record." Only a trial, in which Napster was allowed to look at the record companies' contracts with artists, could determine who owned the music.
Russell Frackman, arguing for the record companies, called this argument hollow. He said that throughout the two-year trial, Napster had never disputed the record companies' ownership of the music. And it hasn't shown any proof otherwise, he said.
The judge seemed, at first, to agree that Napster had raised no significant evidence that the industry doesn't own its music. "Aren't you asking me to allow you to go on an extended fishing expedition to see if there's anything there?" she asked Napster's counsel.
But she also said that if she decided there was an issue of ownership, she might appoint a "special master" to review a few of the record companies' contracts with artists, to determine who owned the music. She asked the attorneys to come together to pick someone they liked.
Napster also argued that the recording industry's recent formation of Musicnet and PressPlay, two online music-licensing companies, was an indication that that the companies were conspiring to keep music out of the hands of services like Napster.
Comparing the record industry to OPEC, the international oil cartel, Barenholtz suggested the companies left Napster no choice but to engage in possibly infringing behavior.
Frackman said, though, that Napster had no right to claim misuse, for it had itself acted with "unclean hands." Its behavior -- the millions of songs possibly illegally downloaded -- made "their hands the dirtiest in town," he said.
But Barenholtz said Napster had "collected information that these plaintiffs have a long history of anti-competitive behavior," and that it shouldn't be taken as fact that Napster's hands are the dirtiest.
This question of whose hands are dirtier consumed a good chunk of court time, and the judge, eventually, put an end to the debate.
"All good things, good and otherwise, must come to an end," she said.
Whatever the outcome for Napster, though, it was also clear on Wednesday that there will be no quick end to the song-swapping phenomenon it started. In a new report, the research firm Jupiter Media Metrix said that there were 6.9 million users of non-Napster song services in August, up 492 percent from March.
