UNITED STATES DISTRICT COURT NORTHERN DISTRICT
No. C 99-05183 MHP
MDL No. C 00-1369 MHP
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,
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, gNapsterh) 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
(C) the name(s) of one or more files1 available on the Napster system
containing such work; and
(D) a certification that plaintiffs own or control the rights allegedly
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 artistsf 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 plaintiffsf copyrighted
works occurs on the system is shared between the parties. The court gplace[d]
the burden on plaintiffs to provide notice to Napsterh and imposed on Napster
the burden gof policing the system within the limits of the system.h 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 greasonable knowledge of
specific infringing filesh as required by the Ninth Circuit. See id. at 2205.
5. Once Napster greceives reasonable knowledgeh 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
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 artistfs 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
United States District Court
Northern District of California
1. The Ninth Circuit directed that plaintiffs provide to Napster the
names of gspecific infringing filesh 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 userfs ability to name her files, relief dependent on plaintiffsf
identifying each gspecific infringing fileh would be illusory.