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Apparently flummoxed by a debate over file-swapping service Napster's compliance with a court injunction, a federal court judge last week suggested record labels go to a higher court for more direction.

Meanwhile, Napster has apologized to its users for unintentionally blocking more music than is required as it grapples with complying with the injunction. Napster has been building up a filter that blocks copyrighted music to adhere with a court injunction issued March 5 by U.S. District Judge Marilyn Hall Patel.

The recording industry sued Napster in December 1999, charging the Redwood City, California, start-up with copyright infringement.

Patel issued a three-page memo Thursday as a follow-up to a hearing April 10 in which she listened to both sides dispute each other's role in complying with the injunction. Napster maintains that the recording industry must provide it with the file names of music to block, in addition to the song titles and artists.

But the recording industry has said that an order from the Ninth U.S. Circuit Court of Appeals that directed Patel to issue her March 5 injunction requires file names in only certain circumstances. The problem is that because Napster users name files themselves, they have managed to get around Napster's filter by misspelling or creating new names.

Patel concluded that the recording industry may be reading more into an appellate ruling than is there. In that ruling, the Court of Appeals placed the burden on the recording industry to "provide notice to Napster of copyrighted works and files containing such works available on the Napster system before Napster has the duty to disable access to the offending content."

The recording industry maintained that they are not required to provide file names to support claims of vicarious infringement, which they must prove in court by establishing Napster has a financial interest in the infringement and an ability to control the infringement. In that situation, plaintiffs suggest Napster must play a bigger role. They cite another sentence from the appellate decision: "Napster, however, also bears the burden of policing the system within the limits of the system."

Patel concluded: "A plain reading of the paragraph does not allow for two separate standards." But she said the recording industry "may seek clarification from the Court of Appeals."

The recording industry could not be reached for comment on whether it would seek direction from the higher court. "[This order] doesn't reflect anything new," recording industry spokesperson Amy Weiss says in a statement. "Napster still needs to comply with the order."

Napster took a different view. "This shows the recording industry has responsibility to share the burden," a Napster representative says. On its Web site, Napster maintains it is continuing to comply with the injunction and has recently enhanced its filters to block more file name variations.

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