Advanced Copyright Issues on the Internet - Fenwick & West LLP

plaintiffs’ reading of the paragraph might be “a prescient reading,” nevertheless rejected itbecause the plain language of the paragraph did not allow for two separate standards, but rather“only one with several elements.” 1284The parties also disputed whether the provision of the Mar. 5 modified injunctionregarding the availability of the plaintiffs’ copyrighted works prior to the official release of thoseworks adequately resolved the plaintiffs’ concerns. To aid its resolution of this issue, the courtrequested the parties to submit declarations of persons who could assist the court inunderstanding how far in advance of release the record companies generally knew that aparticular recording would be released on a specific date. 1285 Finally, the parties disagreed as tothe present and future capabilities of the Napster system to screen the plaintiffs’ copyrightedworks. The court appointed a neutral expert, Dr. A. J. Nichols, to serve as a technology advisorin the matter, and requested that he work with the parties’ technology experts and prepare areport to the court on the present and future capabilities of the Napster system to screen theplaintiffs’ copyrighted works. 128615. The July 11, 2001 Oral Modification of the Preliminary Injunction. Even after theApr. 26 clarification, the parties continued to dispute bitterly the scope of the obligation on thepart of the plaintiffs to supply filenames to Napster, as well as Napster’s compliance with themodified preliminary injunction. The plaintiffs alleged that infringing files were still rampant onthe Napster system, while Napster insisted that it was adequately blocking all filenames of whichit had been made aware by the plaintiffs, as well as many variants of those filenames, includingall files containing the names of many particular artists that had been noticed as illegallyappearing on the system, and all files having titles or variants of those titles alleged to beinfringing, regardless of the artist performing a work by that title – thereby resulting insubstantial “overblocking” of files on the system.During the months ensuing after the Apr. 26 clarification, Dr. Nichols issued a series ofreports to the district court concerning Napster’s ability to remove infringing files from itssystem. Also during this time, Napster voluntarily developed and switched to a new technologyknown as “fileID” for blocking allegedly infringing files from the Napster system. The newtechnology, unlike the old, was not based primarily on filenames, but rather on a technicalanalysis of the digital musical content contained in a file, including acoustic waveformrecognition, to generate a “fingerprint.” The parties disputed the effectiveness of the newtechnology and whether Napster’s use of this technology was sufficient to comply with themodified preliminary injunction. The plaintiffs insisted that the preliminary injunction requiredNapster’s system to be 100% free of infringing files, and that there was still infringing materialbeing shared through the system. Napster insisted, however, that no technology could ever be100% accurate in screening out allegedly infringing materials from its system, and that neitherthe preliminary injunction, nor the Ninth Circuit’s decision in Napster I, required its system to be100% infringement free. Instead, Napster insisted that it was required to exert only reasonable1284 Id.1285 Id.1286 Id.- 291 -