April 2001

The Music Industry v. Napster

Copyright Law Peers into the Networking World

by Sheila M. Heidmiller

In the first case involving peer-to-peer (P2P) networking technology in the context of copyright infringement, A&M Records and 17 other record companies brought suit in December 1999 against Napster.¹ The complaint alleges direct infringement on the part of Napster users and contributory and vicarious federal copyright infringement on the part of Napster.² Ultimately, a preliminary injunction was issued ordering Napster to remove all copyrighted works from its site within three days of receiving notice from plaintiffs of specific files containing infringing works. The trial court holdings at the summary judgment and preliminary injunction stages are problematic in their application of copyright law to P2P file sharing, and there is an important issue of first impression concerning the safe-harbor provisions of the Digital Millenium Copyright Act (DMCA) that the appellate court did not address.

Napster Technology

Although the parties dispute the precise nature of the service Napster provides, they agree that using Napster for P2P file sharing involves the following basic steps: Napster's MusicShare software can be downloaded free of charge from its Web site onto a user's personal computer.³ MusicShare can then interact with Napster's server-side software when a user logs on, and the user is automatically connected to one of Napster's servers.⁴ If a user wishes to upload music to make it available for sharing, MusicShare reads the list of MP3 files the user has prepared, and the list is then temporarily added to a directory and index of MP3 files on a Napster server.⁵  These user directories/indexes are transient; they change based upon who is logged on and off at any given time.⁶ 

If a user wishes to locate a song to download, he must enter its name or the name of the recording artist on the search page of the MusicShare software, then click the "Find It" button.⁷ The Napster application software does not have the ability to search for a particular song or recording artist per se, or the ability to organize MP3 files based on content.⁸ Instead, the Napster server-side software merely performs a text search of the file names requested by a user on his or her search form to determine whether any of the names match file names indexed on a particular temporary cluster server at the time the user is logged on.⁹ 

Upon receiving the search results, the requesting user can then click on the file he wishes to download, at which time a Napster server routes the request to the host user's MusicShare browser, which responds to the server that it either can or cannot supply the file.¹⁰ If it can, the Napster server communicates the host's address and routing information to the requesting user's MusicShare browser, enabling the requesting user to make a connection with the host user and download the file(s).¹¹ This is commonly called "peer-to-peer networking" (P2P), because the file sharing occurs between two "peers" (personal computers).

A user may also perform a search using the "hotlist" function by viewing a list of files on another user's hard drive (if he is logged on) and selecting a file to download from that list.¹² In either case, the Napster server enables the communication between the requesting user's and host user's MusicShare browsers.¹³ 

Part I: Napster's Motion for Summary Judgment

Napster first moved for summary judgment on grounds that it was protected by the safe-harbor provisions of the DMCA.¹⁴ Section 512 of the DMCA exempts qualifying Internet Service Providers ( ISPs) from monetary liability for direct, vicarious and contributory infringement, and limits injunctive relief.¹⁵ The trial court noted that interpretation of the safe-harbor provisions is an issue of first impression.¹⁶ 

Napster's Theory

Napster argued that its services fall within the safe harbor provided by Section 512(a), which limits liability "for infringement of copyright by reason of the [service] provider's transmitting, routing, or providing connections for material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections" if five conditions are satisfied:

(1) the transmission of the material was initiated by or at the direction of a person other than the service provider; (2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider; (3) the service provider does not select the recipients of the material except as an automatic response to the request of another person; (4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than the anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing or provision of connections; and (5) the material is transmitted through the system or network without modification of its content.¹⁷ 

Plaintiffs' Theories

Plaintiffs argued that (1) Napster provides information location tools and is therefore subject to the more stringent eligibility requirements of 512(d) rather than 512(a), and Napster does not perform the function protected by 512(a) because the infringing material is not transmitted "through" the Napster system; (2) alternatively, if infringing material is transmitted "through" the Napster system, copies of MP3 files are stored on the system longer than reasonably necessary for transmission; and (3) under the general eligibility requirements established in Section 512(i), an ISP must have adopted, reasonably implemented, and informed its users of a policy for terminating repeat infringers, and Napster, argued plaintiffs, only adopted its copyright compliance policy after the onset of this litigation and, even now, does not discipline infringers in any meaningful way.¹⁸ 

The Court's Analysis of 512(d)

Section 512(d) applies to service providers "referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link…."¹⁹ The court found that Napster does perform some information location functions. However, the court did not rule on the applicability of 512(d) to these functions, noting that Napster was relying on 512(a) and not 512(d) as grounds for its motion for summary judgment.²⁰ 

The Court's Analysis of 512(a)

Napster argued that the MP3 files are transmitted "through" its system, because the files are transmitted from the host user's MusicShare browser and hard drive to the recipient's MusicShare browser and hard drive.²¹ And, argued Napster, obviously the Internet cannot be considered "a system or network controlled or operated by or for the service provider" (section 512(a) limits liability for infringement of copyright by reason of the ISP's transmitting, routing, or providing connections for material through a system or network controlled or operated by or for the ISP).²² 

The trial court found that, even if the Napster system includes the MusicShare browser on each user's computer (which the court did not rule on), the MP3 files are not transmitted "through" the system within the meaning of 512(a).²³ The court reasoned that the transmission goes from one part of the system to another, or between parts of the system rather than "through" the system, because, although the Napster server conveys address information to establish a connection between the requesting and host users, the connection itself occurs "through" the Internet.²⁴ 

The court's finding on whether the transmissions go "through" the Napster system is strained, and seems to be based purely on a matter of semantics. Serving as a conduit for the address information that makes the connection possible necessarily includes serving as a conduit for the connection itself. Furthermore, to say that the transmission goes from one part of the system to another or between parts of the system is to say that it goes through the system. Through is defined as "passage or course within the limits of, or between or among the individual members or parts of."²⁵ 

The court's reasoning is comparable to suggesting that a telephone call goes from one part of the telephone system to another, or between parts of the telephone system, but not "through" the telephone system, and that the telephone system serves as a conduit for the address information (the phone numbers) that makes the connection between two telephones possible, but not as a conduit for the connection itself.

The Court's Holding

Because the trial court found that Napster does not transmit, route or provide connections "through" its system, the court held that Napster had failed to demonstrate that it qualified for the 512(a) safe harbor and therefore denied Napster's motion for summary judgment.²⁶ 

The 9th Circuit Court of Appeals unfortunately did not directly speak to this important issue of first impression. The Court did, however, state that it expected the issue of whether Napster is an ISP and, if so, whether it has the ability to obtain shelter under Section 512 of the DMCA to be further developed at trial.²⁷ 

Part II: Plaintiffs' Motion for Preliminary Injunction

After the trial court's denial of Napster's motion for summary judgment, plaintiffs sought a preliminary injunction enjoining Napster from engaging in or facilitating others in copying, downloading, uploading, transmitting or distributing plaintiffs' copyrighted musical compositions and sound recordings without express permission.²⁸ Napster sought to oppose plaintiffs' motion for a preliminary injunction primarily by invoking the Sony²⁹ defense.

Direct Infringement

To prevail on a contributory or vicarious copyright infringement claim, a plaintiff must first show direct infringement by a third party.³⁰ The court summarily held that plaintiffs had established a prima facie case of direct copyright infringement by Napster users, because it found that Napster users engage in widespread unauthorized downloading and uploading of copyrighted music, and that such use does not qualify as fair use.³¹ The 9th Circuit Court of Appeals affirmed this finding, reasoning that Napster users who upload file names to a search index for others to copy violate plaintiffs' distribution rights, and that Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights.³² The appellate court found no error in the trial court's determination that plaintiffs will likely succeed in establishing that Napster users do not have a fair-use defense.³³ 

Contributory Infringement

The trial court found that plaintiffs had presented convincing evidence that Napster executives knew about and sought to protect allegedly infringing use of its service.³⁴ Napster argued that it could not distinguish between infringing and non-infringing files in the temporary file directories, since this data comes from users logged on at any given time.³⁵ The court, however, found this argument unpersuasive and irrelevant, because the law does not require actual knowledge of specific acts of infringement, and because it found that it was likely that Napster had constructive knowledge of its users' infringement.³⁶ 

The Sony Defense

Napster then argued that it was not liable for contributory copyright infringement, because it was protected under the Sony holding. The U.S. Supreme Court held in Sony that a manufacturer is not liable for contributory copyright infringement resulting from the sale of a device that is capable of commercially significant non-infringing uses.³⁷ Napster argued that its service falls under Sony, because of non-infringing Napster uses such as sampling (where users make a temporary copy of a work to determine whether they wish to purchase it) and space shifting (where users access a work through Napster in MP3 format that they already own in hard-copy CD format).³⁸ 

The trial court found that Sony does not apply, reasoning that (1) sampling is not a noninfringing use, because it amounts to obtaining copies of songs that users would otherwise have to purchase, and because plaintiffs had demonstrated a likelihood that sampling would adversely affect their entry into the digital music market if it became widespread; (2) space shifting is not a noninfringing use, because, unlike the time shifting (recording a work on tape to view later) of television broadcasts in Sony, space shifting displaces sales and is an occasional use of Napster rather than the principal use; and (3) Napster exercises ongoing control over its service, whereas in Sony the defendant's participation did not extend past manufacturing and selling the VCRs.³⁹ 

The trial court also found that its finding of knowledge on the part of Napster put an end to Napster's attempts to invoke the protection of the 512(d) safe harbor, because that section expressly excludes from protection any defendant who has "actual knowledge that the material or activity is infringing," or "is aware of facts or circumstances from which infringing activity is apparent."⁴⁰ Therefore, the court completely shut the door on the safe-harbor protection Napster had sought at the summary judgment stage, and tied up the loose end left dangling in that opinion (whether Napster's activities fall under the safe harbor of 512(d) — having found that they do not fall under 512(a)).

Importantly, the 9th Circuit Court of Appeals did not agree with the trial court's Sony analysis. "We depart from the reasoning of the district court that Napster failed to demonstrate that its system is capable of commercially significant non-infringing uses."⁴¹ The Court found that the district court improperly confined its Sony analysis to current uses, as opposed to current and future noninfringing uses and capabilities.⁴² However, the Court noted that "whether we might arrive at a different result is not the issue here."⁴³ 

The appellate court also disagreed with the trial court's analysis of whether Napster had the requisite knowledge for contributory infringement, holding that "[w]e are bound to follow Sony, and will not impute the requisite level of knowledge to Napster merely because peer-to-peer file sharing technology may be used to infringe plaintiffs' copyrights."⁴⁴ However, distinguishing between the architecture of the Napster system and Napster's conduct in relation to the operational capacity of its system, the Court went on to find that the evidentiary record supported the trial court's finding that plaintiffs would likely prevail in establishing that Napster knew or had reason to know of its users' infringement.⁴⁵ The 9th Circuit implied, however, that a more fully developed factual record might yield a different result.⁴⁶ 

The trial court also found that plaintiffs had shown that Napster materially contributes to the infringing activity of its users (the other element of contributory infringement) by providing the support services necessary for users to share files, and that plaintiffs had therefore established a reasonable likelihood of success on their contributory infringement claim.⁴⁷ The appellate court summarily affirmed this holding, agreeing that, under Fonovisa, Napster provides "the site and facilities" for direct infringement.⁴⁸ 

Vicarious Infringement

With regard to the vicarious infringement claim, Napster argued that it does not have the ability to supervise the allegedly infringing activity, because the temporary user indexes are created and maintained by users.⁴⁹ Plaintiffs, however, convinced the trial court that Napster can and sometimes does supervise and police its service.⁵⁰ 

The trial court also found that plaintiffs had shown a reasonable likelihood that Napster has a direct financial interest in the infringing activity, because direct financial benefit does not require earned revenue so long as the defendant has economic incentives for tolerating unlawful behavior.⁵¹ The court reasoned that, although Napster currently generates no revenue, its internal documents indicate that it plans to eventually derive revenues.⁵² The court therefore held that plaintiffs had shown a reasonable likelihood of success on their vicarious infringement claim.⁵³ 

The appellate court affirmed this holding, but agreed only in part with the trial court's determination that Napster has the right and ability to supervise its users' conduct. The 9th Circuit found that the trial court correctly determined that Napster has the right and ability to police its system and failed to exercise that right to prevent the exchange of copyrighted material, but that the trial court failed to recognize limitations on the boundaries of the premises that Napster has the ability to control and patrol.⁵⁴ The Court stated that one such limitation is Napster's inability to access its users' MP3 files.⁵⁵

Another limitation found by the 9th Circuit is that the Napster system does not read the content of the indexed user files.⁵⁶ However, the Court went on to find that Napster has the ability to locate infringing material listed on the indexes by using its search function, and the right to terminate users' access to the system.⁵⁷ 

Irreparable Harm

Because the trial court held that plaintiffs had shown a reasonable likelihood of success on the merits of their claims of third-party infringement on the part of Napster users, and contributory and vicarious infringement on the part of Napster, plaintiffs were entitled to a presumption of irreparable harm for purposes of the preliminary injunction. The court found that Napster failed to rebut the presumption, because plaintiffs had established that they had invested in the digital downloading market and that their business plans had been threatened by Napster offering the same service for free.⁵⁸  

The appellate court affirmed this finding, but seemed to rest its affirmation on the mushrooming effect that the publicity of the case has had on Napster use (people scrambling to obtain as much free music as possible before the trial).⁵⁹ 

Preliminary Injunction

The appellate court affirmed the trial court's finding that a preliminary injunction is necessary, but held that the scope of the injunction must be narrowed and modified such that contributory liability may be imposed only to the extent that Napster (1) receives reasonable knowledge of specific infringing files with copyrighted music; (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.⁶⁰ Citing Sony, the 9th Circuit held that "[t]he 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."⁶¹               

The Court further held that Napster may be vicariously liable only if it fails to affirmatively use its ability to patrol its system and fails to preclude access to potentially infringing files listed in its user indexes.⁶²

The trial court's original version of the preliminary injunction placed on Napster the entire burden of ensuring that no "copying, downloading, uploading, transmitting, or distributing" of plaintiffs' works occurs on the system.⁶³ In contrast, the appellate court's version of the preliminary injunction "place[s] the burden on plaintiffs to provide notice to Napster of copyrighted works and files containing such works available on the Napster system before Napster has the duty to disable access to the offending content" and Napster "bears the burden of policing the system within the limits of the system."⁶⁴ 

Fortunately, the 9th Circuit mostly unmuddied the trial court's strained Sony analysis, and the appellate court recognized the inherent limitations in policing a P2P file-sharing system. However, the appellate court unfortunately did not address the trial court's arguably flawed findings related to the DMCA's safe-harbor provisions.

Part III: Issuance of the Revised Preliminary Injunction

Napster has already stated that it will appeal to the 9th Circuit Court of Appeals to have the case heard en banc.⁶⁵ It is not likely, however, that the full panel would reach a different outcome, in that the three-judge panel's analysis seems well reasoned. The full panel might, however, provide guidance to the trial court with regard to the DMCA's safe-harbor provisions. If they do, Napster could have a better chance of prevailing at trial.

Meanwhile, the trial court, on March 5, 2001, issued the revised preliminary injunction.⁶⁶ It orders (1) plaintiffs to provide to Napster notice of plaintiffs' copyrighted sound recordings by providing for each work: the title, name of the artist, and the name of one or more files available on the Napster system containing such work; (2) both parties to use reasonable measures to identify variations of the file names, titles and artists' names provided by plaintiffs, and an accompanying obligation to identify the actual identity of the work if it is reasonable to believe that a file available on Napster is a variation of a particular work or file identified by plaintiffs; (3) within three business days of receiving reasonable knowledge of specific infringing files from any source identified in (1) or (2) above, a duty on the part of Napster to prevent such files from being included in the Napster index (thereby preventing access to those files); (4) within three business days of receiving reasonable notice of infringing files, a duty on the part of Napster to search the names of all files being made available by all users at the time those users log on (i.e., prior to the names of files being included in the Napster index) and prevent the downloading, uploading, transmitting or distributing of the noticed copyrighted works; and (5) Napster to block access to or through its system to any recordings plaintiffs may provide to Napster in advance of release where plaintiffs believe there is a substantial likelihood of infringement on the Napster system.⁶⁷  

What Does It All Mean?

Although the preliminary injunction will considerably reduce the amount of music available through Napster, it need not shut down Napster. The order is much less broad than the original preliminary injunction issued by the trial court (which was stayed and then ordered revised by the 9th Circuit Court of Appeals). The biggest difference is that plaintiffs must share in the burden of identifying files on Napster's service that are infringing plaintiffs' copyrights. The original injunction placed the entire burden on Napster to simply remove all copyrighted works from its service. Because of the transitory nature of the indexes, and the nature of P2P file sharing, the requirement that individual file names be identified before they are blocked will make it considerably more difficult to screen all infringing songs from the service by simply searching for their titles.⁶⁸ 

Moreover, the preliminary injunction in many ways mirrors steps already taken by Napster to screen some infringing songs out of its service, as Napster continues to take steps to attempt to work with plaintiffs to move to a subscription service.⁶⁹ 

A remaining and important question is: If this goes to trial, what will Napster be liable for? Under the appellate court's ruling, Napster would be liable for contributory infringement only if it fails to take action after receiving notice from plaintiffs that specific copyrighted works are located on Napster's servers, and liable for vicarious infringement if it fails to use its patrolling abilities to preclude access to potentially infringing files. This is very important in light of the potential statutory damages that could be awarded. Plaintiffs are asking for the maximum of $100,000 for each copyrighted work infringed; a federal judge in New York ruled last year that MP3.com was liable for $25,000 in statutory damages for each CD copied (with an estimated total award of $118 million).⁷⁰ Thus, an astronomical damages award against Napster is certainly not out of the question.

However, the appellate court's ruling could be interpreted to mean that Napster is not liable for contributory or vicarious infringement for anything it has done up to this point, because plaintiffs need to provide Napster with notice under the newly issued preliminary injunction before Napster has a duty to act. If that interpretation is correct, no statutory damages would be available in connection with the alleged infringing activity that occurred prior to the newly issued preliminary injunction and notice received thereunder. But at trial, the trial court could interpret the appellate court's ruling to mean that some or all of the works identified previously by plaintiffs served as adequate notice under the appellate court's ruling. If that interpretation is correct, statutory damages would be available in connection with the alleged infringing activity that occurred prior to the newly issued preliminary injunction and notice received thereunder.

The Bigger Picture

There are two basic versions of P2P networks: centralized Napster-style models that use servers to direct traffic, and decentralized server-free models that directly connect individual users over an IP network.⁷¹ The former enables each user to borrow processing from other workstations on the network, while the latter enables each user's computer storage to join with others to become a large data repository.⁷² Many argue that P2P networking devoid of a central server is much more efficient than other ways of sharing information over the Internet, because it overcomes the shortcomings of organizing content in one central server.⁷³ 

The appellate court's holding would arguably make it almost impossible for the music industry to go after companies like Gnutella and Freenet (decentralized P2P file-sharing services) because the files being traded, which include more than music files, are not stored on servers. Also, the open source code software used by Gnutella is in the public domain.⁷⁴ Therefore, even if the music industry were able to shut down services like Gnutella and Freenet, it would not shut down P2P file sharing, because clones would probably appear within a matter of days.

Indeed, some argue that the real danger may lie in shutting down centralized P2P file-sharing services like Napster.⁷⁵ If individuals who share music files are committing copyright infringement (and they are, according to both the Napster trial court and the 9th Circuit Court of Appeals), then violations are so widespread that enforcement may become virtually impossible if Napster is out of the picture, because there will be very little chance of supervising decentralized P2P file sharing.⁷⁶ The music industry must accept the fact that "[w]e are moving from music as a product to music as a service," and begin partnering with service providers to deliver the content to the public in a way that takes advantage of what both sides have to offer.⁷⁷ 

P2P networking is an important technology far beyond P2P file sharing. P2P networking may hold solutions to a number of problems currently plaguing the Internet. For instance, search engines, which individuals outside a P2P network must use to search for content, are imperfect because they index only a small fraction of available Web sites, and they are notoriously out of date.⁷⁸ P2P networking, on the other hand, enables individuals to locate material available over the Internet that many search engines do not find.⁷⁹ Moreover, distribution over a P2P network does not require access to a Web server, the content does not have to be translated into HTML code, and the content need not be indexed by a search engine.⁸⁰ In short, P2P networking has the potential to change the architecture of the Internet.

Sheila Heidmiller will receive her J.D. in June from Seattle University School of Law, and has been offered a position at Schwabe Williamson & Wyatt. The author wishes to thank Professor Gregory Silverman, whose support made the writing of this article possible.

NOTES

1. Napster is the world's largest P2P file-sharing community, currently boasting a user base of over 50 million.  Napster to RIAA:  The Issue Is Not the Copyright, It's the Control (September 13, 2000) http://www.napster.com/pressroom/pr/000913. html; Recording Artists Look beyond Traditional Promotion, Turning to Napster Community for Direct Access to Fans (September 15, 2000) http://www.napster.com/pressroom/pr/000915.html.

2. A&M Records, Inc. et al v. Napster, Inc., No. C 99-05183 MHP, 2000 U.S. Dist. Lexis 6243 (N.D. Cal. May 5, 2000).

3. Id. at *3.

4. Id.

5. Id. at *4.

6. Id.

7. Id.

8. Id. at *20-21.

9. Id. at *21.

10. Id. at *5.

11. Id.

12. Id.

13. Id.

14. Id.

15. Id.

16. Id.

17. 17 U.S.C.S § 512(a) (LEXIS 2000).

18. A&M Records, Inc. et al v. Napster, Inc., No. C 99-05183 MHP, 2000 U.S. Dist. Lexis 6243, at *12-14 (N.D. Cal. May 5, 2000).

19. Id. at *14-15 (quoting 17 U.S.C. § 512(d)).

20. Id. at *19.

21. Id. at *21.

22. Id.

23. Id.

24. Id. at *21-22.

25. New Webster's Dictionary.

26. A&M Records, Inc. et al v. Napster, Inc., No. C 99-05183 MHP, 2000 U.S. Dist. Lexis 6243, at *25 (N.D. Cal. May 5, 2000).

27. A&M Records, Inc. et al v. Napster, Inc., No. 00-16401, at *14 (9th Cir. February 12, 2001).

28. A&M Records, Inc. et al v. Napster, Inc., No. C 99-5183 MHP, No. C00-0074 MHP, 2000 U.S. Dist. Lexis 11862 (N.D. Cal. August 10, 2000).

29. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

30. A&M Records, Inc. et al v. Napster, Inc., No. C 99-5183 MHP, No. C00-0074 MHP, 2000 U.S. Dist. Lexis 11862, at *39 (N.D. Cal. August 10, 2000).

31. Id.

32. A&M Records, Inc. et al v. Napster, Inc., No. 00-16401, at *14 (9th Cir. February 12, 2001).

33. Id. at *9.

34. A&M Records, Inc. et al v. Napster, Inc., No. C 99-5183 MHP, No. C00-0074 MHP, 2000 U.S. Dist. Lexis 11862, at *39 (N.D. Cal. August 10, 2000).

35. Id. at *62.

36. Id. at *61-64.

37. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 434 (1984).

38. A&M Records, Inc. et al v. Napster, Inc., No. C 99-5183 MHP, No. C00-0074 MHP, 2000 U.S. Dist. Lexis 11862, at *44 (N.D. Cal. August 10, 2000).

39. Id. at *56.

40. A&M Records, Inc. et al v. Napster, Inc., No. C 99-5183 MHP, No. C00-0074 MHP, 2000 U.S. Dist. Lexis 11862, at *65 (N.D. Cal. August 10, 2000) (quoting 17 U.S.C. § 512(d)(1) (A), (B)).

41. A&M Records, Inc. et al v. Napster, Inc., No. 00-16401, at *10 (9th Cir. February 12, 2001).

42. Id.

43. Id.

44. Id. at *10-11.

45. Id.

46. Id.

47. A&M Records, Inc. et al v. Napster, Inc., No. C 99-5183 MHP, No. C00-0074 MHP, 2000 U.S. Dist. Lexis 11862, at *65 (N.D. Cal. August 10, 2000).

48. A&M Records, Inc. et al v. Napster, Inc., No. 00-16401, at *11-12 (9th Cir. February 12, 2001) (quoting Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996), which held that the support services provided by a swap meet operator materially contributed to infringement).

49. Id.

50. A&M Records, Inc. et al v. Napster, Inc., No. C 99-5183 MHP, No. C00-0074 MHP, 2000 U.S. Dist. Lexis 11862, at *70 (N.D. Cal. August 10, 2000).

51. Id.

52. Id. at *71.

53. Id.

54. A&M Records, Inc. et al v. Napster, Inc., No. 00-16401, at *12-13 (9th Cir. February 12, 2001).

55. Id. at *16.

56. Id. at *13.

57. Id. at *13, *16.

58. A&M Records, Inc. et al v. Napster, Inc., No. C 99-5183 MHP, No. C00-0074 MHP, 2000 U.S. Dist. Lexis 11862, at *71 (N.D. Cal. August 10, 2000).

59. A&M Records, Inc. et al v. Napster, Inc., No. 00-16401, at *14 (9th Cir. February 12, 2001).

60. Id. at *16.

61. Id.

62. Id.

63. Id. (quoting the trial court's preliminary injunction).

64. Id.

65. Brad King, Napster Faces Shutdown (February 12, 2001) http://www.wired.com/news/politics
/0,1283,41752,00.html.

66. A&M Records, Inc. et al v. Napster, Inc., No. C 99-05183 MHP MDL No. C00-1369 MHP (N.D. Cal. March 5, 2001).

67. Id.

68. John Borland, Judge Lets Napster Live Despite Injunction (March 6, 2001) http://news.cnet.com/news/
0-1005-200-5039135.html?tag=rltdnws.

69. Id.

70. Declan McCullagh, Napster May Pay Dearly for This (February 13, 2001) http://www.wired. com/news/politics/
0,1283,41757,00.html; see also UMG Recordings, Inc. et al v. MP3.com, Inc., No. 00 Civ. 472 (JSR), 2000 U.S. Dist. LEXIS 13293.

71. Paul McDougall, The Power of Peer-to-Peer (August 28, 2000) http://www.techweb.com/wire/story/TWB20000828S0014.

72. Id.

73. Mary Mosquera, Napster Suit Breeds Oppor-tunities, Risks (August 21, 2000) http://www. techweb.com/wire/story/TWB20000821S0003.

74. Id.

75. John Heilemann, David Boies: The Wired Interview (October 8, 2000) http://www.wired.com/wired/archive/8.10/boies.html.

76. Scott Resenberg, The Napster Files (February 4, 2000) http://www.salon.com/tech/col/rose/
2000/02/04/napster_swap/.

77. Mary Mosquera, Lawmakers Grapple with Napster Issues (July 11, 2000) http://www. techweb.com/wire/story
/TWB20000711S0013 (quoting James Griffin, CEO of Cherry Lane Digital, an Internet music company).

78. Amicus Curiae Brief of Copyright Law Professors for Napster at 4, A&M Records, Inc. et al v. Napster, Inc., Nos. 00-16401, 00-16403, 2000 U.S. App.Lexis18688 (9th Cir. July 28, 2000) (Nos. C 99-5183, C 00-0074).

79. Id.

80. Id.

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