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On May 2, Metallica, you may recall, presented Napster with a list of over 300,000 users that Metallica claimed were using Napster's software to illegally exchange MP3s of Metallica tunes. Metallica demanded that the users be immediately blocked from accessing the service. On May 10, Napster complied, but according to the terms of the Digital Millennium Copyright Act, the users still had the right to protest their banning with a response explaining their innocence -- a so-called "counter notification." And if Metallica failed to initiate legal proceedings against each individual respondent within 10 days, Napster would be able to reinstate each user.

Well, nearly 10 percent of those 300,000 fans did exactly that -- sending off counter notifications complaining that they were misidentified. As Napster founder Shawn Fanning boasted in a company press release, "The fact that so many people have come forward and disputed Metallica's accusation ... demonstrates that this is not a black-and-white issue."

Now Metallica faces the unpleasant option of initiating lawsuits against each and every one of those 30,000 users -- although Metallica insists that the band has received only 17,000 counter notifications. Not surprisingly, Metallica also has doubts as to the honesty of the protesters. Complains Howard King, the lawyer for Metallica, "They're perjuring themselves. They're not misidentified. We did a survey and we have proof that at such-and-such a date, they were offering Metallica songs. Could there be 10 mistakes? Sure. 15? Maybe. But there are not 17,000 mistakes. There's no way."

Still, regardless of whether the Napster users are lying, most are now free and clear. It's up to Metallica to prove each claim, and the band does not appear to be up to the daunting task. "We're not going to pursue the perjury claims. It's a criminal act; you can go to jail," says King. "But we're not going to pursue it because it would be a distraction. Our goal is to put Napster out of the copyright-infringement business."

The band might pick out a representative sample of 100, King says, and try to prove in court that those users were, in fact, perjuring themselves -- as "just more evidence to show why Napster should be closed down." The rest of the once-banned Metallica fans can breathe easy and return to their previous Napster business -- although we'd recommend staying away from those Metallica tunes, kids.
salon.com | May 16, 2000

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