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Tuesday,
March 06 12:12 P.M.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
No. C 99-05183 MHP
MDL No. C 00-1369 MHP
ORDER
A&M RECORDS, INC., a corporation;
GEFFEN RECORDS, INC., a corporation;
INTERSCOPE RECORDS, a general partnership;
SONY MUSIC ENTERTAINMENT INC., a corporation;
MCA RECORDS, INC., a corporation;
ATLANTIC RECORDING CORP., a corporation;
ISLAND RECORDS, INC., a corporation;
MOTOWN RECORD COMPANY L.P., a limited partnership;
CAPITOL RECORDS, INC., a corporation;
LA FACE RECORDS, a joint venture;
BMG MUSIC d/b/a THE RCA RECORDS LABEL, a general partnership; UNIVERSAL
RECORDS INC., a corporation;
ELEKTRA ENTERTAINMENT GROUP INC., a corporation;
ARISTA RECORDS, INC., a corporation;
SIRE RECORDS GROUP INC., a corporation;
POLYGRAM RECORDS, INC., a corporation;
VIRGIN RECORDS AMERICA, INC., a corporation; and
WARNER BROS. RECORDS INC., a corporation,
Plaintiffs,
v.
NAPSTER, INC.
Defendant.
_____________________________________/
In accordance with the Opinion of the United States Court of Appeals
for the Ninth Circuit filed on February 12, 2001, it is this 5th day
of March, 2001, HEREBY ORDERED that, during the pendency of this action
and until final judgment is entered, defendant Napster, Inc. and its
agents,servants, employees, representatives, subsidiaries, assigns
and those acting in concert with them or at their direction (collectively,
''Napster'') are enjoined as follows:
1. Napster is preliminarily enjoined, pursuant to the procedures set
forth below, from engaging in, or facilitating others in, copying,
downloading, uploading, transmitting, or distributing copyrighted
sound recordings in accordance with this Order.
2. Plaintiffs shall provide notice to Napster of their copyrighted
sound recordings by providing for each work:
(A) the title of the work;
(B) the name of the featured recording artist performing the work
(''artist name'');
(C) the name(s) of one or more files 1 available on the Napster system
containing such work; and
(D) a certification that plaintiffs own or control the rights allegedly
infringed. Plaintiffs shall make a substantial effort to identify
the infringing files as well as the names of the artist and title
of the copyrighted recording.
3. All parties shall use reasonable measures in identifying variations
of the filename(s), or of the spelling of the titles or artists' names,
of the works identified by plaintiffs. If it is reasonable to believe
that a file available on the Napster system is a variation of a particular
work or file identified by plaintiffs, all parties have an obligation
to ascertain the actual identity (title and artist name) of the work
and to take appropriate action within the context of this Order.
4. The Ninth Circuit held that the burden of ensuring that no copying,
downloading, uploading, transmitting or distributing of plaintiffs'
copyrighted works occurs on the system is shared between the parties.
The court ''place(d) the burden on plaintiffs to provide notice to
Napster'' and imposed on Napster the burden ''of policing the system
within the limits of the system.'' See A&M et al. v. Napster, No.
00-164001, slip op. at 2206 (9th Cir. Feb. 12, 2001). It appears to
the court on the basis of the factual representations by the parties
at the March 2, 2001 hearing that it would be difficult for plaintiffs
to identify all infringing files on the Napster system given the transitory
nature of its operation.2 This difficulty, however, does not relieve
Napster of its duty. The court anticipates that it may be easier for
Napster to search the files available on its system at any particular
time against lists of copyrighted recordings provided by plaintiffs.
The court deems that the results of such a search provide Napster
with ''reasonable knowledge of specific infringing files'' as required
by the Ninth Circuit. See id. at 2205.
5. Once Napster ''receives reasonable knowledge'' from any source
identified in preceding Paragraphs 2, 3 or 4 of specific infringing
files containing copyrighted sound recordings, Napster shall, within
three (3) business days, prevent such files from being included in
the Napster index (thereby preventing access to the files corresponding
to such names through the Napster system).
6. Within three (3) business days of receipt of reasonable notice
of infringing files, Napster shall affirmatively search the names
of all files being made available by all users at the time those users
log on (i.e., prior to the names of files being included in the Napster
index) and prevent the downloading, uploading, transmitting or distributing
of the noticed copyrighted sound recordings.
7. 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.
8. Within five (5) business days of the date of this Order, and within
five (5) business days of service of notice by plaintiffs as provided
in Paragraphs 2 or 6 of this Order, Napster shall serve upon plaintiffs
and file with the court a Report of Compliance identifying the steps
it has taken to comply with this Order.
9. If in implementing this preliminary injunction the parties dispute
the ability of Napster or of the Napster system to carry out the duties
established under this Order, the parties may set the matter for hearing
before the court. However, such disputes will not operate to stay
this injunction or afford relief from it. The court may appoint an
independent third party to serve as a technical expert to assist the
court in connection with the dispute.
10. Notification by plaintiffs pursuant to this Order shall be provided
to Napster in the format such records are kept in the ordinary course
of business.
11. This order is effective immediately, a bond in the amount of Five
Million Dollars ($5,000,000.00) already having been posted with the
court.
Dated: March ___, 2001
_______________________________
MARILYN HALL PATEL
Chief Judge
United States District Court
Northern District of California
ENDNOTES
1. The Ninth Circuit directed that plaintiffs provide to Napster the
names of ''specific infringing files'' containing copyrighted material.
See A&M Records, et al. v. Napster, Inc., No. 00-164001, slip op.
at 2205 (9th Cir. Feb. 12, 2001). This language appears to refer to
the titles of specific files containing copyrighted material that
appear on the Napster system at any given time. The court observes
that each file is available only as long as the user offering that
file is logged on to the Napster system. Once the user logs off the
system, the specific infringing file is no longer available on Napster.
Another user may log on and offer a file containing the same copyrighted
material, but that user may have assigned a different name for her
file.
2. Given the limited time an infringing file may appear on the system
and the individual user's ability to name her files, relief dependent
on plaintiffs' identifying each ''specific infringing file''would
be illusory.
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