noted that “[b]ecause defendant has contributed to illegal copying on a scale that is without
precedent, it bears the burden of developing a means to comply with the injunction. Defendant
must insure that no work owned by plaintiffs which neither defendant nor Napster users have
permission to use or distribute is uploaded or downloaded on Napster. The court ORDERS
plaintiffs to cooperate with defendant in identifying the works to which they own copyrights.”^1730
On July 28, 2000 (the day the district court had set for the preliminary injunction to go
into effect), the Ninth Circuit issued a stay of the injunction, noting that the case “raised
substantial questions of first impression going to both the merits and the form of the
injunction.”^1731 As discussed above, the Ninth Circuit ultimately ruled in Napster I that the
district court’s original preliminary injunction was overbroad, and remanded the case for entry of
a narrower preliminary injunction consistent with the Ninth Circuit’s opinion. Napster
subsequently filed a petition with the Ninth Circuit for rehearing en banc, which was denied by
order dated June 22, 2001.
On remand, both the plaintiffs and Napster each submitted proposed preliminary
injunctions. On March 5, 2001, the district court entered a revised, narrower preliminary
injunction requiring the plaintiffs to give notice to Napster of specific infringing file names on
the Napster system and requiring Napster to block access to those file names through its search
index, as well as reasonable variants of such file names that the parties might generate. The
modified preliminary injunction required use of Napster’s file name search function as the
centerpiece of Napster’s duty to police. The district court also permitted the record company
plaintiffs to submit notices to Napster of new sound recordings in advance of their release, and
required Napster to make efforts to do prophylactic blocking of such new recordings.
Specifically, the revised preliminary injunction provided as follows in pertinent part:^1732
“Plaintiffs shall provide notice to Napster of their copyrighted sound recordings
by providing for each work:(A) the title of the work;
(B) the name of the featured recording artist performing the work (“artist
name”);
(C) the name(s) of one or more files available on the Napster system
containing such work; and
(D) a certification that plaintiffs own or control the rights allegedly
infringed.(^1730) Id. The court ordered the plaintiffs to post a bond in the amount of $5 million – far below what Napster had
requested – to compensate Napster for losses in the event that the injunction was reversed or vacated. Id.
(^1731) Order, A&M Records, Inc. v. Napster, Inc., No. 00-16401, 2000 U.S. App. LEXIS 18688 (9th Cir. July 28,
2000).
(^1732) The text of the complete preliminary injunction may be found at 2001 U.S. Dist. LEXIS 2186 (N.D. Cal. Mar.
5, 2001).