In the Ninth Circuit opinion in the Napster case, available here, one of the main pegs the court hung its hat on was that Napster had the ability to identify and remove copyrighted materials from its system (albeit imperfectly) based on the header information that it kept on its system. My understanding is that Gnutella does not keep similar header information on its system, so the Ninth Circuit opinion would not be able to be used precisely aginst them in a preliminary injunction stage of a proceeding.
Remember, though, that the Ninth Circuit opinion dealt with a small issue in a very early stage of the case. Its holding was that the record companies were likely to succeed at trial as a ‘vicarious infringer.’ In light of that, the court found it to be legally appropriate to require Napster to take steps to stop the copyright violations pending trial. Part of the discussion of what legal steps Napster should take was a review of the steps it could easily and directly take to alleviate the problem.
The Ninth Circuit held that Napster could be required to remove songs that appeared to be infringing based on the header information, and sent the case back to the District Court to craft an order that would reflect this. The Circuit held that the District Court’s original order, which was a blanket prohibition of infringement, was too broad.
In the case of a system like Gnutella, the opinion leaves many questions unanswered. The opinion holds that a header-logging system like Napster can be ordered before trial to remove infringing files, but does not address what would happen in the next case where infringing file identification would be more difficult. More important, it does not address what would be an appropriate final remedy if Gnutella were held to be a ‘vicarious infringer.’ Under the preliminary decision, if Gnutella management knows that the system is being used for pervasive music piracy, there is a good chance that Gnutella would be ultimately found liable and subject to damages and/or a permanent injunction after trial (if a preliminary injunction were inappropriate).
In short, Gnutella’s system is not directly in the path of this bullet, but it is likely that the next ones will come a lot closer and eventually hit it.