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>From: Kevin Kiernan <kkiernanATlisten.com>
>To: "'phoATonehouse.com'" <phoATonehouse.com>
>Subject: pho: Napster ruling summary
>Date: Mon, 12 Feb 2001 10:19:59 -0800
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>This summary constitutes no part of the opinion of the court.
>It has been prepared by court staff for the convenience of the reader.
>
>Return to Opinion Text
>
>A&M Records v. Napster, Inc., 00-16401/403
>Panel: Chief Judge Schroeder, Judges Beezer (author) and Paez
>Decision Date: February 12, 2001
>The panel affirmed in part and reversed in part a published decision by
>Chief District Judge Patel, 114 F. Supp. 2d 896, 900 (N.D. Cal. 2000), which
>entered a preliminary injunction against Napster in copyright infringement
>actions brought by various record companies holding copyrights in sound
>recordings. Napster is the designer and operator of a system that permits PC
>users to transmit and retain copyrighted sound recordings employing digital
>technology. Through a process known as "peer-to-peer" file sharing, Napster
>allows its users to make music files stored on individual computer hard
>drives available for copying by other Napster users, to search for music
>files stored on other users' computers, and to transfer exact copies of
>other users' music files from one computer to another via the Internet.
>
>The panel agreed with the district court that the record companies presented
>a prima facie case of direct copyright infringement by Napster users. The
>panel also agreed with the district court's rejection of Napster's
>affirmative defense that its users are engaged in fair use of the
>copyrighted material.
>
>The panel upheld the district court's conclusion that Napster may be
>secondarily liable for the direct copyright infringement under two
>doctrines: contributory copyright infringement and vicarious copyright
>infringement. As to the contributory copyright infringement claim, the panel
>concluded that Napster knowingly encourages and assists its users to
>infringe the record companies' copyrights and Napster materially contributes
>to the infringing activity. As to the vicarious copyright infringement
>claim, the panel concluded that Napster has a direct financial interest in
>its users' infringing activity and retains the ability to police its system
>for infringing activity. The panel recognized that whether Napster may
>obtain shelter under the safe harbor provisions of the Digital Millennium
>Copyright Act is an issue to be more fully developed at trial. The panel
>agreed with the district court that the Audio Home Recording Act did not
>cover the downloading of these music files to computer hard drives.
>
>The panel concluded, however, that the scope of the district court's
>preliminary injunction was overbroad and remanded for the district court to
>modify the injunction as follows: Napster may be held liable for
>contributory copyright infringement only to the extent that Napster knows of
>specific infringing files with copyrighted musical compositions or sound
>recordings, knows or should have known that the files are available on the
>Napster system, and fails to act to prevent the distribution of the
>copyrighted material. Napster may be held liable for vicarious copyright
>infringement when it fails to affirmatively use its ability to patrol its
>system and preclude access to potentially infringing files listed in its
>search index.
>
>The panel directs the district court to immediately enter a modified
>preliminary injunction.
>
>
>Kevin Kiernan
>Director of Artist & Label Relations
>Listen.com
>www.listen.com ---> Find Your Music
>
>kkiernanATlisten.com
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