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Decision of Note

By Stan Soocher
August 24, 2003

The US District Court for the Southern District of New York has decided that the negative impact of the Napster free file-sharing software on the ability to sell sound recordings over the Internet didn't give rise to a frustration of purpose defense in a suit over failure to pay the full license fee for the right to sell Who recordings online. Profile Publishing v. Musicmaker.com Inc., 01-2886 (Jan. 24).

In December 1999, Profile and Musicmaker signed an agreement that gave Musicmaker the exclusive right to sell several live recordings of the Who over the Internet worldwide for ten years. Musicmaker agreed to pay Profile a percentage of the sales price as well as an advance against royalties of $2.5 million.

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