NAPSTER DECISION UPHELD ON APPEAL

            The United States Court of Appeals for the Ninth Circuit has upheld the District Court opinion which found a substantial likelihood that Napster, Inc. was guilty of both contributory and vicarious copyright infringement.

            Although the case involves the unauthorized copying, downloading, uploading, transmitting and distributing of copyrighted music, the importance of the decision to the photography industry is emphasized by the filing of an amicus (or friend of the Court) Brief on appeal by the American Society of Media Photographers, the Professional Photographers Association, and the < Graphic Artists Guild.

            The Court narrowed the scope of the injunction and remanded the case to the District Court to come up with the exact language.

            The Court held that liability for contributory copyright infringement could be imposed only to the extent Napster receives reasonable knowledge of specific infringing files with copyrighted musical compositions and sound recordings, that it knows or should know that such files are available on its system, and that it fails to act to prevent such distribution. The modification eliminated the burden for Napster to police all uses within its system.

            The distinction is probably more legal than practical in this instance, since the music companies have notified Napster of thousands of files being infringed.

            The court also found that Napster may be liable for vicarious copyright infringement where it fails to affirmatively use its ability to patrol its system and preclude access to potentially infringing files listed in its search index.

            All in all, it was a good day for the copyright owners of creative content.