FITUG e.V. Förderverein Informationstechnik und Gesellschaft

Re: The day the music didn't die

------- Forwarded message follows ------- Date sent: Mon, 12 Feb 2001 10:55:01 -0800 Send reply to: Law & Policy of Computer Communications <CYBERIA-L@LISTSERV.AOL.COM> 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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