HITS Daily Double
"There is little choice but to defend our rights through the legal system. To do otherwise would be to abandon America’s music community to
the pirates."
——Edward P. Murphy, NMPA


RIAA, NMPA Sue Audiogalaxy, Deeming It "More Egregious Than Napster"
Calling the file-sharing system "more egregious than Napster," the RIAA and National Music Publishers Association (NMPA) have filed suit against Austin, Texas-based Audiogalaxy for copyright infringement. Company head Michael Merhej is named as a defendant.

The suit, pressed in New York on 5/24, charges the swapco with "willfully and intentionally" enabling and encouraging its user community to "copy and distribute infringing copyrighted works by the millions, if not billions."

Beyond the availability of scores of MP3 files, the litigation notes that the file-sharing system allows the unregulated circulation of whole albums as single files, artwork and software.

The legal action points to what it calls Audiogalaxy’s "fully integrated, centralized structure and facility, including a hub of central computers to which users connected; a continuously updated database and index of infringing sound records; information about the file size, popularity and download speed of files and proprietary software to facilitate efficient identification, copying and distribution of recordings."

These details relate to pitched battles in the Napster case over how much the original bad boy of P2P knew about—and how far it could regulate—the exchange of material between users via its system.

Audiogalaxy has been especially vulnerable to litigation of this nature because, like Napster, it operates on an older, centralized model of file sharing based on an index of file names.

"Audiogalaxy and Napster are cut from the same cloth," proclaimed RIAA SVP Business and Legal Affairs Matt Oppenheim. "And speaking of cloth, just feel this gabardine—like butter, no?"

The AG suit was filed, plaintiffs insist, only after repeated warnings resulted in little more than a lackluster filtering mechanism.

"Because of the architecture, this kind of filtering is an impossible task," ventures Eric Garland of BigChampagne, a company that studies P2P activity. "A file system based on file naming will always devolve into users deploying Pig Latin or other attempts to foil the system," he adds, which is just what happened when Napster attempted to restrict users’ access to copyrighted material (see story, 4/11/01).

"Litigation is never our preferred course," said NMPA CEO Edward P. Murphy, despite the fact that he has the entire New York State Bar Association on speed-dial. "But when a company that repeatedly demonstrate its intent, despite repeated warnings, to continue to engage in and facilitate activities it knows are causing grave harm to creators and copyright owners, there is little choice but to defend our rights through the legal system. To do otherwise would be to abandon America’s music community to the pirates. And you’ve seen what those people did to the Caribbean."

"Audiogalaxy is profiting by providing its users a library of pirated music, including today’s most popular hits," Oppenheim adds. "Though claiming fealty to copyrights, Audiogalaxy continues to offer up virtually all of the music we told them should be excluded. The firm’s sieve-like filter has been totally ineffective."

"I would not say that Audiogalaxy’s inability to comply [with demands for the removal of copyrighted material] was in and of itself evidence that they were not making a good-faith effort," muses BigChampagne’s Garland. "But with a centralized search index, the only way to really effectively block copyrighted works 100% is to turn out the lights." This is obviously the intended outcome of the latest legal effort.

The user agreement at audiogalaxy.com declares that visitors may not "publish, post, distribute, disseminate or link to any… software or other material protected by intellectual property laws, copyright licenses, rights of privacy or publicity, or other proprietary rights, unless you own, control such rights or have received all necessary consents for your use of such software and other materials."

We’re sure that scares a lot of folks off.