of which were eventually consolidated before Judge Patel in the Northern District of California
under the Multi-District Litigation (MDL) rules of the federal courts. In July of 2000, the district
court entered a broad preliminary injunction against Napster. Before it took effect, however, the
Ninth Circuit stayed the injunction pending an expedited appeal by Napster.
After appeal, the Ninth Circuit issued an opinion affirming in part and reversing in part,
with a remand to the district court to enter a modified preliminary injunction of narrower scope,
which the district court did on Mar. 5, 2001. Both sides filed a second appeal to the Ninth
Circuit based on the Mar. 5 preliminary injunction. The Mar. 5 order was clarified by the district
court in a memorandum dated Apr. 26, 2001, then orally modified by the court from the bench
on July 11, 2001. Ten days before the oral modification of the injunction, on July 1, 2001,
Napster voluntarily suspended file sharing through its service. On July 18, 2001, the Ninth
Circuit stayed the district court’s July 11 oral modification of the preliminary injunction. 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 Mar. 5
modified injunction.
The Napster cases raised a number of issues of significant importance to online copyright
law, and the district court and the Ninth Circuit took somewhat different approaches with respect
to various of the issues. With respect to each issue, the district court’s analysis will first be
described, followed by the Ninth Circuit’s analysis of the issue. Because there were multiple
appeals to the Ninth Circuit, the first opinion issued by the Ninth Circuit will be referred to as
“Napster I,” to distinguish it from the later opinion issued by the Ninth Circuit as a result of the
subsequent consolidated appeals, which will be referred to as “Napster II.”
- Whether Any Otherwise Direct Infringement by Napster’s Users Was Immunized by
the AHRA. The district court ruled that Napster was both contributorily and vicariously liable
for infringing downloads of copyrighted material by its users via the Napster system. The court
ruled that the plaintiffs had established a prima facie case of direct copyright infringement by
Napster users because “virtually all Napster users engage in the unauthorized downloading or
uploading of copyrighted music; 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.”^1625 The Ninth Circuit in Napster I agreed, concluding that (i) the mere uploading of
file names to the search index by Napster users, thereby making the files corresponding to those
file names available for downloading (whether or not they were in fact downloaded by other
users) constituted an infringement of the plaintiffs’ exclusive distribution rights and (ii) the
unauthorized downloading of files containing copyrighted music by Napster users violated the
plaintiffs’ exclusive reproduction rights.^1626
Napster argued that its users’ downloads of music for their own personal use were
immunized by the Audio Home Recording Act of 1992 (AHRA).^1627 The AHRA made two
(^1625) Napster, 114 F. Supp. 2d at 911.
(^1626) A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001) (“Napster I”).
(^1627) Pub. L. No. 102-563, 106 Stat. 4244 (1992), codified at 17 U.S.C. §§ 1001-1010.