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[FYI] Jeffrey S. Rothstein: "The Napster decision 'validates Gnutella'"


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February 23, 2001 

Legal Expert Sees Napster Competitors Thriving


By now it's sunk in that, last week, a three-judge panel of the 
United States Court of Appeals for the Ninth Circuit in San Francisco 
branded a great many Napster users as direct copyright infringers. 
That was bad news for Napster fans, to say nothing of Napster itself, 
which was declared by the court to have likely violated federal 
copyright laws for contributing to the infringement activities of its 

But one legal observer says the federal court's decision is far from 
a mortal blow to other music file-sharing systems. Indeed, he 
believes there is a key aspect of the ruling that could give added 
legal protection to more decentralized file-swapping Internet-based 
systems, such as Gnutella and its many clones.  

The Napster decision "validates Gnutella," said Jeffrey S. Rothstein, 
a partner in the Chicago office of Sidley & Austin and a member of 
the law firm's technology and e-commerce practice group.  


A major portion of the appeals court's decision last week concerned 
whether Napster unlawfully assisted and encouraged the infringement 
acts of Napster users. The court found, as a preliminary matter, that 
Napster had both actual and constructive knowledge that its users 
exchanged copyrighted music -- one of the requirements for a finding 
of contributory liability  


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