second, that portion imposing on Napster the “burden of policing the system within the limits of
the system,” as relating only to claims of vicarious infringement. Plaintiffs therefore maintained
that they were required to provide specific file names only to obtain preliminary relief on their
claims of contributory infringement, but did not need to provide filenames to obtain preliminary
relief on their claims of vicarious infringement.^1741 The district court, although noting that the
plaintiffs’ reading of the paragraph might be “a prescient reading,” nevertheless rejected it
because the plain language of the paragraph did not allow for two separate standards, but rather
“only one with several elements.”^1742
The parties also disputed whether the provision of the Mar. 5 modified injunction
regarding the availability of the plaintiffs’ copyrighted works prior to the official release of those
works adequately resolved the plaintiffs’ concerns. To aid its resolution of this issue, the court
requested the parties to submit declarations of persons who could assist the court in
understanding how far in advance of release the record companies generally knew that a
particular recording would be released on a specific date.^1743 Finally, the parties disagreed as to
the present and future capabilities of the Napster system to screen the plaintiffs’ copyrighted
works. The court appointed a neutral expert, Dr. A. J. Nichols, to serve as a technology advisor
in the matter, and requested that he work with the parties’ technology experts and prepare a
report to the court on the present and future capabilities of the Napster system to screen the
plaintiffs’ copyrighted works.^1744
- The July 11, 2001 Oral Modification of the Preliminary Injunction. Even after the
Apr. 26 clarification, the parties continued to dispute bitterly the scope of the obligation on the
part of the plaintiffs to supply filenames to Napster, as well as Napster’s compliance with the
modified preliminary injunction. The plaintiffs alleged that infringing files were still rampant on
the Napster system, while Napster insisted that it was adequately blocking all filenames of which
it had been made aware by the plaintiffs, as well as many variants of those filenames, including
all files containing the names of many particular artists that had been noticed as illegally
appearing on the system, and all files having titles or variants of those titles alleged to be
infringing, regardless of the artist performing a work by that title – thereby resulting in
substantial “overblocking” of files on the system.
During the months ensuing after the Apr. 26 clarification, Dr. Nichols issued a series of
reports to the district court concerning Napster’s ability to remove infringing files from its
system. Also during this time, Napster voluntarily developed and switched to a new technology
known as “fileID” for blocking allegedly infringing files from the Napster system. The new
technology, unlike the old, was not based primarily on filenames, but rather on a technical
analysis of the digital musical content contained in a file, including acoustic waveform
recognition, to generate a “fingerprint.” The parties disputed the effectiveness of the new
(^1741) Memorandum at 2.
(^1742) Id.
(^1743) Id.
(^1744) Id.