FC: Will the Napster judge appoint a technical adviser?

[Declan McCullagh <declan () well com>]

**********

Date: Fri, 23 Mar 2001 20:45:27 -0500
To: declan () well com
From: Doug Isenberg <disenberg () GigaLaw com>
Subject: Will Napster Judge Appoint a Technical Adviser?
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Will Napster Judge Appoint a Technical Adviser?
http://www.internetworld.com/news/archive/03262001d.jsp

By Doug Isenberg

When California District Court Judge Marilyn Hall Patel issued her order 
nearly three weeks ago requiring Napster to block access to songs provided 
by the music industry, even she anticipated that her ruling could cause 
more disputes than it attempted to resolve.

"If in implementing this preliminary injunction the parties dispute the 
ability of Napster or of the Napster system to carry out the duties 
established under this order, the parties may set the matter for hearing 
before the court," she wrote. She later added, "The court may appoint an 
independent third party to serve as a technical expert to assist the court 
in connection with the dispute."

Now that the inevitable disputes have arrived, the logical question is, 
When (not whether) will Judge Patel appoint a technical expert -- and who 
will it be?

[snip]

So what will Judge Patel do? While, of course, only she knows for sure, the 
reasonable step would be to appoint an independent technical expert to help 
her decide whether the parties are complying with the injunction -- and, 
perhaps, whether the injunction is workable.

An independent technical expert could help determine whether the lists of 
artists and song titles being provided by the music industry are sufficient 
to enable Napster to block the necessary MP3 files, and he or she also 
could determine whether Napster is taking the prevention measures ordered 
by the court.

Because judges are, obviously, trained in the law and not typically in 
technology, Judge Patel could benefit from an outside technical adviser. 
But selecting one could in and of itself raise even more disputes. When 
Thomas Penfield Jackson, the trial judge who presided over the Microsoft 
antitrust case, asked then-Harvard law professor Lawrence Lessig to serve 
as a "special master" in that case, Microsoft alleged that he had an 
"actual bias" against Microsoft based on e-mails Lessig had sent to 
Netscape. An appeals court removed the professor from the case.

[remainder snipped]




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