STUDIO
LEGALE
Avv.
STEFANO COMELLINI
Via Bocca di Lupo, 19
- 40123 BOLOGNA
La
decisione 6 marzo 2001
A&M
Records, inc. + altri
contro
Napster, inc.
UNITED STATES
DISTRICT COURT
NORTHERN
DISTRICT OF CALIFORNIA
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.
No. C 99-05183
MHP
MDL No. C
00-1369 MHP
ORDER
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 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