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Don Henley and Ted Nugent are among the big-name musicians expected to converge this week in the nation’s capital as the Senate Judiciary Committee takes up the issue of digital entertainment. This will be Congress’ first look at the issue since the controversial file-sharing service Napster started filtering copyrighted songs under court order. But don’t expect lawmakers to take matters into their own hands. Monday’s announcement that three record label owners have partnered with RealNetworks, the maker of a popular digital music player, to create a for-pay online music subscription service may blunt any criticism the entertainment industry might otherwise have received from Congress. Even Napster’s most supportive ally on Capitol Hill, Sen. Orrin Hatch, R-Utah, chairman of the Senate Judiciary Committee, has said that he is interested in seeing the marketplace lead when it comes to Internet-based access to music. The Judiciary Committee hearing starts at 10 a.m. today in Washington, D.C. Among the witnesses are Henley, who has previously taken on the recording industry in an effort to promote artists’ rights, and Nugent, who sometimes confiscates illegal T-shirts as they are sold at his own concerts. In addition, Napster CEO Hank Barry, Liquid Audio CEO Gerry Kearby and MP3.com CEO Michael Robertson are expected to testify on behalf of digital music companies. Richard Parsons, co-COO of AOL Time Warner, and EMI’s Ken Berry will represent the record labels. Hilary Rosen, president and CEO of the Recording Industry Association of America, and Jack Valenti of the Motion Picture Association of America will also testify before the committee. Given the developments in the marketplace, one important question is whether Napster has any future. The timing of the RealNetworks deal couldn’t have been better for the record labels, which seemed wary of sending representatives to the hearing, perhaps out of a fear of bad publicity. A growing number of congressional representatives have become dissatisfied with the slow pace at which labels are making music available online to consumers. That said, Congress has made no attempts to circumvent copyright laws to make file-sharing legal. For its part, Napster has been trying to organize some sort of rally in Washington before the hearing. The company initially seemed to expect as many as 1,000 devotees to show up for the activities — an assessment deduced from the fact that the company’s Web site last week offered concert admission and a free Napster T-shirt to the first 1,000 people to RSVP and come to the hearing. That offer dropped off Napster’s site last week. Manus Cooney, VP of corporate and public policy development, declined to say how many supporters Napster currently anticipates. But the concert is still on: Rock band Dispatch will play a special thank-you show tonight at the 9:30 Club in Washington. The performance will, of course, be Webcast. Monday night, hip-hop artist Chuck D was scheduled to join Napster founder Shawn Fanning at the Ronald Reagan Building and International Trade Center for what was initially billed as a “teach-in” on file-sharing. In an apparent attempt to tone down the histrionics, Cooney now prefers to call it a “round-table forum.” “This is for people who are coming to the Washington area for the hearing the next day to come in and learn what some of the issues are that confront Napster and … discuss the issues that frankly may be common speak in Washington,” Cooney says. He notes that for some attendees the event will be their “first foray” into politics. The record labels sued Napster for copyright infringement in December 1999 and eventually won a court injunction against the service. Napster is currently asking an appeals court to rehear arguments on the injunction. U.S. District Judge Marilyn Hall Patel will hear from both sides April 10 on whether Napster is complying with the injunction, which requires the company to block all copyrighted songs submitted by the record labels. “My sense is [Sen.] Orrin Hatch would like to really look into whether or not the record labels are interfering with distribution of music through new means,” says Howard King, the attorney representing Metallica and Dr. Dre in their own copyright infringement suits against Napster. “I think he wants to hear testimony on whether record companies are standing in the way of digital distribution.” Napster’s song-swapping program has been downloaded more than 60 million times, and the company wants a little help from its users. On its Web site, Napster is asking users not only to attend the hearing, but also to send e-mail or make toll-free phone calls to their congressional representatives. “Congress needs to know they cannot sit by while the major record companies doggedly try to shut down Napster,” says Napster’s site. The company is about to learn whether its users will stand up and fight for its product or just migrate to other sites that offer similar services. Related Articles from The Industry Standard: RealNetworks Signs 3 Majors to Subscription Service More Sound and Fury Over Napster The Nuge Speaks on Napster Copyright � 2001 The Industry Standard

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