Napster reloads Metallica fans

"As of today, 29,085 Napster users submitting counter notifications in response to Metallica's accusations have been reinstated," said Hank Barry, the Hummer Winblad partner last week named CEO of Napster.

The number represents only a fraction of the 317,377 users who were banned last month after Metallica drummer Lars Ulrich delivered 13 boxes of user names to the company, demanding that Napster restrict access to the band's music.

The site subsequently banned 230,142 users who downloaded Dr. Dre's music. Metallica and Dr. Dre filed identical copyright infringement lawsuits against Napster in April.

'We encourage debate and discussion among the members of our community -- and we listen to that.'|Napster CEO Hank Barry Lawyer Howard King, who represents both Metallica and Dr. Dre, said the users who signed affidavits had lied under oath. Restoring their download capabilities only served to show "how ineffective Napster's so-called copyright protection policy is and how easily 30,000 people can be turned into perjurers by Napster's manipulation." (See: Metallica fans 'probably' lying.)

Furthermore, King said his clients were thinking of naming Barry, Hummer Winblad Venture Partners and the others who invested $15 million in Napster as criminal defendants in the artists' lawsuits.

"They've basically funded the continuation of this criminal racketeering scheme," King said.

"That, in my opinion, would also make them liable. The idea of taking action against specific users has not been dismissed out of hand," he added.

Napster users have tried to frame the controversy over digital downloads as a free speech issue, King said, "And if that's where the public debate goes, you may see a user sued. Because really those people are rationalizing theft."

Some Napster users have made no bones about the fact that they know they're stealing, he said. "They say, 'We don't care, the record labels are ripping us off, the record companies and the artists make too much money, and if you shut down Napster we're going to go somewhere else to steal the music.'"

It would be appropriate to sue such a defendant, King said. "After all, we do have laws, whether these people like it or not."

On Wednesday, the New Musical Express Web site and MTV.com reported that Warner Music was threatening legal action after the title track from singer Madonna's unreleased album "Music" appeared on the Napster site. Repeated calls to Warner Music and Madonna's publicist for comment were not immediately returned.

"I'd love to see Madonna involved in this," King said, adding that he had talked to several other artists -- Madonna not among them -- who are considering legal action against Napster.

In a statement posted on its Web site last month, Napster said users who had been banned could be reinstated if "there has been a genuine mistake or misidentification of the materials made available by that user."

The names of Metallica users who signed online affidavits swearing they had not violated copyrights were submitted to the band, which had 10 days to take action against individual users under the Digital Millennium Copyright Act.

Meanwhile, dozens of Web sites have posted ways for users to circumvent the restrictions, and Napster users have reacted angrily to the musicians, their lawsuits and the ban on the site's message boards.

Barry, however, said the number of users continued to expand "more rapidly than any other application in the history of the internet.

"We encourage debate and discussion among the members of our community -- and we listen to that," he added. "That's how we change, add features and make the application better."