Re: In re Napster, Inc. Copyright Litigation
MDL Case No. 00 1369 (MHP)
Dear Judge Patel:
In accordance with the partial remand and directive of the Ninth Circuit in A&M Records, Inc., v. Napster, Inc., No. 00 16401 (filed Feb. 12, 2001), we have enclosed a Proposed Modified Preliminary Injunction that we ask the Court to consider and to enter at the earliest opportunity. All plaintiffs in the A&M Records and Leiber actions are in agreement on the form of this Proposed Modified Preliminary Injunction and jointly submit this to the Court. We are delivering a copy concurrently to counsel of record for defendant Napster, Inc.
The Proposed Order will impose on Napster the duty to police its system to ensure that plaintiffs' works are not made available for distribution and copying on or through the Napster system. Plaintiffs have, of course, already provided notice of certain protected works in the Schedules attached to their Complaints and in other Court filings. Plaintiffs will supplement these notices with Lists of Protected Works that will be sent to Napster and filed with the Court.
The Proposed Order also instructs Napster to block access to any of plaintiffs' works in specified weekly charts available in Billboard Magazine. Billboard is a highly-regarded, widely-circulated industry publication that contains, among other things, charts of new releases and of top selling music. Indeed, plaintiffs have previously submitted evidence that the top recordings listed in Billboard Magazine are available on or through Napster. By referring to these weekly charts, Napster will quickly know about new releases issued by plaintiffs.
Plaintiffs note their view that they are entitled to a broader injunction in accordance with the Ninth Circuit's opinion. We propose the enclosed Order, however, in the interest of simplicity, clarity and speed. Plaintiffs reserve the right to supplement the record before the Court as necessary for future modification of the preliminary injunction.
Respectfully submitted,
Russel J. Frackman
Mitchell Silberberg & Knupp
Attorney for Record Company Plaintiffs
Carey R. Ramos
Paul Weiss Rifkind Wharton & Garrison
Attorney for Music Publisher Plaintiffs
cc:
Laurence Pulgram, Esq., Counsel for Napster, Inc.
Robert Silver, Esq., Counsel for Napster, Inc.
Kevin Baine, Esq., Counsel for Warner Music Group
Barry Slotnick, Esq., Counsel for BMG Music
Proposed preliminary injunction order submitted by the Recording Industry Association of America and the National Music Publishers Association:
A&M RECORDS, INC., et al, Plaintiffs
vs.
NAPSTER, INC., a corporation, and DOES 1 through 100,
Defendants
CASE NO. C-99-5183 MHP
JERRY LIEBER, et al, Plaintiffs
vs.
NAPSTER, INC., Defendants
CASE NO. C 00-0074 MHP (ADR)
In accordance with the Opinion of the United States Court of Appeals for the Ninth Circuit in these actions, filed on February 12, 2001; it is this __ day of February, 2001, hereby ORDERED that, during the pendency of these actions and until final judgment is entered, Defendant Napster, Inc. and its agents, servants, employees, representatives, subsidiaries, and those acting in concert with them or at their direction (all such parties together being referred to hereafter as ''Napster'') are enjoined as follows:
1. Beginning at 9:00 a.m. on the third business day following the date
of this Order, Napster shall not permit access on or through its system
to any musical composition or sound recording identified in Schedules A
and B to the Complaint in A&M Records, Inc., et al, v. Napster, Inc.
(CV-99-05183 MHP) and in Exhibits A and B to the September 5, 2000,
Declaration of Julia D. Greer in Support of Plan for Ascertaining
Plaintiffs' Rights, and shall not engage in or facilitate the
downloading, uploading, transmissions, reproduction or distribution of
any musical composition or sound recording identified in such Schedules
and Exhibits.
2. Beginning at 9:00 a.m. on the third business day following service by
any plaintiff of any List of Protected Works (defined below), Napster
shall not permit access on or through its system to any Protected Work
(defined below) identified on such List of Protected Works, and shall
not engage in or facilitate the downloading, uploading, transmission,
reproduction or distribution of any musical composition or sound
recording identified in such a List of Protected Works. For purposes of
this Order, the term ''Protected Works'' shall mean any musical
composition or sound recording protected by federal or state law which
any plaintiff owns or controls. For purposes of this Order, the term
''List of Protected Works'' shall mean any list Plaintiffs, at their sole
discretion and timing, serve on Napster and file with the Court, on
which Protected Works are identified.
3. Promptly after the publication of each issue of Billboard Magazine,
Napster shall review the ''Billboard Hot 100'' singles and ''Billboard Top
200'' albums, in order to assure that plaintiffs' Protected Works are not
available on or through the Napster system. Napster shall act promptly
to ensure that no access is permitted on or through its system to any of
plaintiffs' Protected Works as listed in Billboard Magazine's
''Billboard Hot 100'' singles and ''Billboard Top 200 Albums'' and Napster
shall not engage in or facilitate the downloading, uploading,
transmission, reproduction or distribution of any Protected Work
identified on such charts.
4. Napster shall employ such measures and technology as are reasonably
available to affirmatively patrol its system and preclude access to
plaintiffs' Protected Works; and shall use its search function to
identify plaintiffs' Protected Works and bar participation of users who
engage in downloading, uploading, transmission, reproduction or
distribution of plaintiffs' Protected Works.
5. Within five (5) days of the date of this Order, and within five (5)
days of service of a List of Protected Works, Napster shall serve upon
the plaintiffs and file with the Court a Report of Compliance
identifying the steps it has taken to ensure compliance with paragraphs
1 and 2 of this Order.
6. Napster shall maintain a complete list of all musical compositions
and sound recordings made available over its system, and upon reasonable
notice shall make such list available for inspection and copying by the
plaintiffs.
This Order shall become effective upon the posting of a bond by
plaintiffs in the amount of five million dollars ($5,000,000).
The Court retains jurisdiction to modify this Order, including to
require Napster to employ specific means to comply with the terms hereof,
upon further application of the parties and upon a showing of good cause.
DATED: February _______, 2001
__________
Hon. Marilyn Patel
United States District Judge
OF COUNSEL:
Jeffrey G. Knowles (State Bar No. 129754)
Julia D. Greer (State Bar No. 200479)
Keith Evans-Orville (State Bar No. 171036)
Coblentz, Patch, Duffy & Bass LLP
222 Kearny Street, 7th Floor
San Francisco, CA 94108
Leon P. Gold
Herman L. Goldsmith
Proskauer Rose LLP
1385 Broadway
New York, New York 10036-8299
George M. Borkowski (State Bar No. 133416)
Recording Industry Association of America, Inc.
1330 Connecticut Avenue NW, Suite 300
Washington, D.C. 20036