injunction directs Napster, in no vague terms, to do exactly that.”^1771 The court also rejected
Napster’s argument that the district court had improperly delegated its judicial authority to Dr.
Nichols: “At no time did the technical advisor displace the district court’s judicial role. The
technical advisor never unilaterally issued findings of fact or conclusions of law regarding
Napster’s compliance.”^1772
Next, the court turned to Napster’s challenge that the shut down order improperly
amended the modified preliminary injunction by requiring a non-text-based filtering mechanism
and a “zero tolerance” standard for compliance. The Ninth Circuit rejected each of these
challenges. The court apparently found that the requirement of a non-text-based filtering
mechanism did not violate the court’s ruling in Napster I that Napster’s duty to policy was
“cabined by the system’s current architecture,”^1773 because the new filtering mechanism “still
requires Napster to search files located on the index to locate infringing material.”^1774 Thus, the
court appears to have viewed the “architecture” of the Napster system as index based, rather than
text based.^1775 Moreover, the Ninth Circuit noted that a district court has inherent authority to
modify a preliminary injunction in consideration of new facts. “The text-based filter proved to
be vulnerable to user-defined variations in file names. The new filtering mechanism, on the
other hand, does not depend on file names and thus is not similarly susceptible to bypass. It was
a proper exercise of the district court’s supervisory authority to require use of the new filtering
mechanism, which may counter Napster’s inability to fully comply with the modified
preliminary injunction.”^1776 This is a substantial ruling, as it appears to allow a district court to
require an OSP to adopt new technologies that may become available in order to keep infringing
materials off its system.
With respect to the “zero tolerance” challenge, the Ninth Circuit ruled that the district
court’s imposition of a “zero tolerance” standard was permissible because that standard did not
apply to all potentially infringing works on Napster’s system, but only to those works that had
been noticed by the plaintiff:
(^1771) Napster II, 284 F.3d at 1097.
(^1772) Id.
(^1773) Napster I, 239 F.3d at 1024.
(^1774) Napster II, 284 F.3d at 1098.
(^1775) It appears that the Ninth Circuit did not fully understand the non-text-based filtering mechanism that the district
court required Napster to use. As discussed in subsection 15, that alternative filtering technology known as
“fileID,” unlike the old technology, was not based primarily on textual filenames, but rather on a technical
analysis of the digital musical content contained in a file, including acoustic waveform recognition, to generate
a “fingerprint.” Napster combined the fileID technology with its textual filename search technology using the
index, but the fileID technology required a fundamentally different approach to identifying potentially
infringing works. However, the fact that Napster continued to maintain an index appears to have led the Ninth
Circuit to conclude rather facilely that requiring the use of fileID technology did not constitute a departure from
the original Napster system “architecture,” when in fact it required a radically different approach.
(^1776) Id. at 1098.