technology and whether Napster’s use of this technology was sufficient to comply with the
modified preliminary injunction. The plaintiffs insisted that the preliminary injunction required
Napster’s system to be 100% free of infringing files, and that there was still infringing material
being shared through the system. Napster insisted, however, that no technology could ever be
100% accurate in screening out allegedly infringing materials from its system, and that neither
the preliminary injunction, nor the Ninth Circuit’s decision in Napster I, required its system to be
100% infringement free. Instead, Napster insisted that it was required to exert only reasonable
efforts to block infringing material from its system, and only within the limits of the architecture
of its system.
On July 1, 2001, Napster voluntarily shut down the file sharing operation of its system,
after discovering flaws in its fileID fingerprinting technology, and conducted testing on its
technology between July 2 and 9. The parties’ disputes over Napster’s compliance with the Mar.
5 modified injunction came to a head at a status conference before the district court on July 11,
- At that hearing, Napster told the court that, based on its testing, its newly implemented
fileID technology was more than 99% effective and that it was prepared to resume allowing file
sharing through its system.^1745
The district court rejected Napster’s proposal to resume file sharing, stating from the
bench, “I think we’re at a point where it has to stay that way [i.e., file sharing shut down] until
you satisfy Dr. Nichols and me that when the system goes back up it will be able to block out or
screen out copyrighted works that have been noticed.”^1746 Napster pressed the district court to
clarify whether the Mar. 5 modified injunction was meant to require its system to be 100%
accurate in screening of allegedly infringing materials. The court ruled orally as follows: “It’s
not good enough until every effort has been made to, in fact, get zero tolerance. Now that has to
be the objective. If there’s a little – it gets a little messy around edges, if there are some glitches
and so forth, I can understand that. But this system is not going to go back up in such a manner
as to permit copying and downloading other than to test that for the purposes of determining the
error rate until you’ve satisfied Dr. Nichols. And then, he can notify me.”^1747
The district court denied Napster’s request to stay her oral modified order and Napster
immediately requested the Ninth Circuit to issue a stay. On July 18, 2001, the Ninth Circuit
ordered “that the order issued by the district court on July 11, 2001, in open court, modifying the
Preliminary Injunction issued March 5, 2001, is hereby stayed pending a further order of this
court.”^1748 Despite the stay of the district court’s oral modified order, Napster chose not to
resume file sharing through its system.
Both Napster and the plaintiffs pursued further appeals to the Ninth Circuit in view of the
July 11 oral order. The Ninth Circuit consolidated those appeals with the earlier appeals of the
(^1745) “Napster Asks 9th Circuit to Modify 1 Order, Vacate Another,” Mealey’s Cyber Tech & E-Commerce Litigation
Reporter (Aug. 2001) 4-5.
(^1746) Id. at 5.
(^1747) Id.
(^1748) Order, A&M Records, Inc. v. Napster, Inc., No. 01-16308 (9th Cir. July 18, 2001).