Advanced Copyright Issues on the Internet - Fenwick & West LLP

plaintiffs to cooperate with defendant in identifying the works to which they owncopyrights.” 1272On July 28, 2000 (the day the district court had set for the preliminary injunction to gointo effect), the Ninth Circuit issued a stay of the injunction, noting that the case “raisedsubstantial questions of first impression going to both the merits and the form of theinjunction.” 1273 As discussed above, the Ninth Circuit ultimately ruled in Napster I that thedistrict court’s original preliminary injunction was overbroad, and remanded the case for entry ofa narrower preliminary injunction consistent with the Ninth Circuit’s opinion. Napstersubsequently filed a petition with the Ninth Circuit for rehearing en banc, which was denied byorder dated June 22, 2001.On remand, both the plaintiffs and Napster each submitted proposed preliminaryinjunctions. On March 5, 2001, the district court entered a revised, narrower preliminaryinjunction requiring the plaintiffs to give notice to Napster of specific infringing file names onthe Napster system and requiring Napster to block access to those file names through its searchindex, as well as reasonable variants of such file names that the parties might generate. Themodified preliminary injunction required use of Napster’s file name search function as thecenterpiece of Napster’s duty to police. The district court also permitted the record companyplaintiffs to submit notices to Napster of new sound recordings in advance of their release, andrequired Napster to make efforts to do prophylactic blocking of such new recordings.Specifically, the revised preliminary injunction provided as follows in pertinent part: 1274“Plaintiffs shall provide notice to Napster of their copyrighted sound recordingsby providing for each work:(A) the title of the work;(B) the name of the featured recording artist performing the work (“artistname”);(C) the name(s) of one or more files available on the Napster systemcontaining such work; and(D) a certification that plaintiffs own or control the rights allegedlyinfringed.Plaintiffs shall make a substantial effort to identify the infringing files as well asthe names of the artist and title of the copyrighted recording.” 12751272 Id. The court ordered the plaintiffs to post a bond in the amount of $5 million – far below what Napster hadrequested – to compensate Napster for losses in the event that the injunction was reversed or vacated. Id.1273 Order, A&M Records, Inc. v. Napster, Inc., No. 00-16401, 2000 U.S. App. LEXIS 18688 (9th Cir. July 28,2000).1274 The text of the complete preliminary injunction may be found at 2001 U.S. Dist. LEXIS 2186 (N.D. Cal. Mar.5, 2001).1275 Id. 2.- 288 -