[FYI] (Fwd) Re: The day the music didn't die

["Axel H Horns" <horns@ipjur.com>]

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Date sent:      	Mon, 12 Feb 2001 10:55:01 -0800
Send reply to:  	Law & Policy of Computer Communications
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From:           	"James S. Tyre" <jstyre@JSTYRE.COM>
Subject:        	Re: The day the music didn't die
To:             	CYBERIA-L@LISTSERV.AOL.COM

At 01:45 PM 2/12/2001 -0500, Mike Godwin wrote:
>>Still can't get to the horse's mouth, but cnn.com is reporting that
>>the Ninth sent the case back to the District Court.  Some injunctive
>>relief may be warranted, but the actual injunction was overbroad.
>
>Congrats not least to David Boies, who must be relieved to be dealing
>once again with a court that pays attention to the law.

I'm just starting to read Wendy Seltzer's mirror,
http://eon.law.harvard.edu/~wseltzer/napster.html, but though the
music didn't die today, it does not look great in the long run for
Napster.

"The district court correctly recognized that a preliminary injunction
against Napster's participation in copyright infringement is not only
warranted but required. We believe, however, that the scope of the
injunction needs modification in light of our opinion. Specifically,
we reiterate that contributory liability may potentially be imposed
only to the extent that Napster: (1) receives reasonable knowledge of
specific infringing files with copyrighted musical compositions and
sound recordings; (2) knows or should know that such files are
available on the Napster system; and (3) fails to act to prevent viral
distribution of the works. See Netcom, 907 F. Supp. at 1374-75. The
mere existence of the Napster system, absent actual notice and
Napster's demonstrated failure to remove the offending material, is
insufficient to impose contributory liability. See Sony, 464 U.S. at
442-43.

"Conversely, Napster may be vicariously liable when it fails to
affirmatively use its ability to patrol its system and preclude access
to potentially infringing files listed in its search index. Napster
has both the ability to use its search function to identify infringing
musical recordings and the right to bar participation of users who
engage in the transmission of infringing files."

--------------------------------------------------------------------
James S. Tyre                               mailto:jstyre@jstyre.com
Law Offices of James S. Tyre          310-839-4114/310-839-4602(fax)
10736 Jefferson Blvd., #512               Culver City, CA 90230-4969

This man, who seems to have led a life of unrelieved insignificance,
must have been astonished to find himself suddenly putting the
Government of the United States in such fear that it was afraid to
tell him why it was afraid of him.

Shaughnessy v. Mezei, 345 U.S. 206 (1953) (Jackson, J., dissenting)


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