more than seek partners for their commercial downloading ventures and develop music
players for files they planned to sell over the Internet.^1723On appeal in Napster I, the Ninth Circuit affirmed this ruling, citing the district court’s
finding that “in hastening the proliferation of MP3 files, plaintiffs did [nothing] more than seek
partners for their commercial downloading ventures and develop music players for files they
planned to sell over the Internet.”^1724
(iv) Failure to Present Evidence of Copyright Registration. Finally, Napster
argued that, under section 411(a) of the copyright statute,^1725 in order to claim infringement of
multiple works, the plaintiffs were required to specify the works with particularity and provide
proof of copyright registration for those works. Napster noted that the plaintiffs had identified
only a discrete number of works allegedly infringed, together with their registration numbers, in
a Schedule to their complaint, and argued that the plaintiffs had no jurisdiction to assert the
copyrights in other unidentified works. The court rejected this argument, citing a 1990 case from
the D.C. Circuit as authority for the proposition that a court may enter an injunction in a
copyright case covering works owned by the plaintiff but not in suit, particularly where there has
been a history of continuing infringement and there exists a significant threat of future
infringement.^1726
On appeal in Napster I, the Ninth Circuit failed to address this argument directly.
Instead, it simply ruled that the plaintiffs had sufficiently demonstrated “ownership” for purposes
of a prima facie case of direct infringement, quoting the district court’s statement that “as much
as eighty-seven percent of the files available on Napster may be copyrighted and more than
seventy percent may be owned or administered by plaintiffs.”^1727
- The Mar. 5, 2001 Preliminary Injunction. The district court ruled that, because the
plaintiffs had shown a reasonable likelihood of success on the merits of their contributory and
vicarious^1728 copyright infringement claims, they were entitled to a presumption of irreparable
harm, and a preliminary injunction should issue. The district court therefore enjoined Napster
“from engaging in, or facilitating others in copying, downloading, uploading, transmitting, or
distributing plaintiffs’ copyrighted musical compositions and sound recordings, protected by
either federal or state law, without express permission of the rights owner.”^1729 The court further
(^1723) Napster, 114 F. Supp. 2d at 924.
(^1724) Napster I, 239 F.3d at 1026.
(^1725) That section provides that “no action for infringement of the copyright in any work shall be instituted until
registration of the copyright claim has been made in accordance with this title.” 17 U.S.C. §411(a).
(^1726) Napster, 114 F. Supp. 2d at 925 (citing Walt Disney Co. v. Powell, 897 F.2d 565, 568 (D.C. Cir. 1990)).
(^1727) Napster I, 239 F.3d at 1013 (quoting Napster, 114 F. Supp. 2d at 911) (emphasis added). It is puzzling why a
showing that a certain percentage of the works on Napster “may” be copyrighted and “may” be owned by
plaintiffs is sufficient to meet the very specific jurisdictional requirements of 17 U.S.C. § 411(a).
(^1728) The court’s rationale for its rejection of Napster’s defense under the safe harbors of the DMCA is discussed in
Section III.C.6 below.
(^1729) Napster, 114 F. Supp. 2d at 927.