“Plaintiffs may provide to Napster in advance of release the artist name, title of
the recording, and release date of sound recordings for which, based on a review
of that artist’s previous work, including but not limited to popularity and
frequency of appearance on the Napster system, there is a substantial likelihood of
infringement on the Napster system. Napster shall beginning with the first
infringing file block access to or through its system to the identified recording.
As Napster presently has the capability (even without enhancing its technology)
to store information about and subsequently screen for a particular recording, the
burden is far less and the equities are more fair to require Napster to block the
transmission of these works in advance of their release. To order otherwise would
allow Napster users a free ride for the length of time it would take plaintiffs to
identify a specific infringing file and Napster to screen the work.”^1738Napster appealed, and the plaintiffs cross-appealed, the Mar. 5 modified preliminary
injunction of the district court.
- The Apr. 26, 2001 Clarification of the Preliminary Injunction. Many disputes
between the plaintiffs and Napster quickly arose over the meaning and obligations imposed on
the parties by the Mar. 5 modified injunction. First, the parties disputed whether the plaintiffs
were required to provide notice to Napster of the names of specific files available on the Napster
system containing the plaintiffs’ copyrighted sound recordings.^1739 The plaintiffs argued that the
Ninth Circuit’s decision in Napster I required them to provide specific filenames only in support
of their claims for contributory infringement, and not in support of their claims for vicarious
liability, based on the following passage from Napster I:
The preliminary injunction we stayed is overbroad because it places on Napster
the entire burden of ensuring that no “copying, downloading, uploading,
transmitting, or distributing” of plaintiffs’ works occur on the system. As stated,
we placed the burden on plaintiffs to provide notice to Napster of copyrighted
works and files containing such works available on the Napster system before
Napster has the duty to disable access to the offending content. Napster, however,
also bears the burden of policing the system within the limits of the system. Here,
we recognize that this is not an exact science in that the files are user named. In
crafting the injunction on remand, the district court should recognize that
Napster’s system does not currently appear to allow Napster access to users’ MP3
files.^1740The plaintiffs read this passage in two parts: First, they read that portion placing the
“burden on plaintiffs to provide notice to Napster ... before Napster has the duty to disable
access to the offending content,” as relating only to claims for contributory infringement; and
(^1738) Id. ¶ 7.
(^1739) Memorandum, In re Napster, Inc. Copyright Litigation, MDL No. C 00-1369 MHP (N.D. Cal. Apr. 26, 2001),
at 1.
(^1740) Id. at 1-2 (quoting Napster I, 239 F.3d at 1027).