The court brushed away the various defense strategies of Napster's lawyers in language that leaves the file-trading service very little room left to maneuver. We think the harm to Napster and its users would be very real and substantial. The central ruling of the 19-page opinion laid out the bad news for Napster's fans succinctly. We believe, however, that the scope of the injunction needs modification in light of our opinion. 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.
Contributory liability is the central issue.
The court dismissed this defense, asserting that Napster had both a right and a responsibility to supervise its users' actions. Therefore, the court ordered that the District Court rewrite its injunction to incorporate the requirement that Napster first be alerted of actual copyright infringements. If Napster fails to act upon that knowledge, then the injunction will shut Napster down. There is little doubt that a flood of alerts from the record studios warning Napster of infringement will soon descend on the beleaguered service. But Napster's lawyers' first priority will be to haggle over a new injunction with the District Court, hoping that the company's new Bertelsmann backing will give the service more credibility as a legitimate commercial concern.