New Ruling From Judge Patel in Napster Investor Suit

By John Ottaviani

There’s been some discussion and misconceptions about Judge Patel’s latest ruling in the long-running Napster saga. Although her May 11 order has been described as holding that the Section 106(3) distribution right does not extend to maintaining an index of downloadable files, a reading of the order reveals that it is far less noteworthy.

By way of background, it appears that the Napster investors (I’ll refer to all of the defendants simply as Napster) have filed a motion for summary judgment on a number of grounds. One of these is that it is not an infringement of the Section 106(3) distribution right to merely maintain an index of downloadable files. The plaintiffs (I’ll refer to all of them simply as the Record Companies) filed a memorandum/brief arguing why Napster is not entitled to summary judgment. One of the arguments in that brief is that Section 106(3) does prohibit maintaining an index of downloadable files.

After Congress passed the Artists’ Rights and Theft Prevention Act of 2005 in April, the Record Companies filed another motion, requesting permission to file a supplemental brief. In this supplemental brief, the Record Companies argue that the ART Act language supports their argument that maintaining the index of downloadable files does infringe the distribution right under Section 106(3).

I read Judge Patel’s 5/11 order as simply saying she is not going to permit the Record Companies to file the supplemental brief, because she does not believe the ART Act has changed anything as to how Section 106(3) should be interpreted. In particular, I do not see any reference to a disposition of the underlying motion for summary judgment. My conclusion, then, is that the underlying motion for summary judgment is still pending, and she has not ruled whether or not maintaining the index of downloadable files does/does not infringe the copyright owner’s distribution right.

The issue is far from settled. In its 1997 Hotaling decision, the U.S. Court of Appeals for the Fourth Circuit found that the Church of Jesus Christ of Latter-Day Saints had infringed a geneology book by placing an unauthorized copy in its collection, including the copy in its catalog, and making the copy available to the public. While I may agree that the conduct should violate something, the decision has never convinced me that the conduct violates the Section 106(3) distribution right, based simply on a plain reading of the statute. Judge Patel’s decision on the merits, when it is issued, hopefully will provide us with more learning on the subject.

Eric’s previous commentary on the ART Act.

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