Sony Corp. of Am. v. Universal City Studios, Inc.,^1652 which held that a manufacturer is not
liable for contributory infringement for selling a staple article of commerce that is “capable of
commercially significant noninfringing uses,”^1653 even if that article is used to commit copyright
infringement. Napster raised a number of uses of the Napster system that it argued were both
actual and potential commercially significant noninfringing uses. The district court found that
the specific uses raised by Napster were in fact infringing:
- Sampling. Napster argued that many users use Napster to sample unfamiliar music
and then, if they like it, go purchase the music on CD. Napster argued that downloads initiated
for sampling purposes and followed up by a purchase of the music, constituted fair use. The
district court rejected this argument, ruling that sampling on Napster was not a “personal use in
the traditional sense that courts have recognized – copying which occurs within the household
and does not confer any financial benefit on the user,” and that instead sampling on Napster
amounted to “obtaining permanent copies of songs that users would otherwise have to purchase;
it also carries the potential for viral distribution to millions of people.”^1654 The court
distinguished this kind of sampling activity from the time-shifting of viewing that the Supreme
Court found a fair use in Sony, where time-shifting enabled a viewer to witness a broadcast that
the viewer had been invited to view in its entirety free of charge; by contrast, the court noted that
the plaintiffs almost always charged for their music. In addition, the court noted that the
majority of VCR purchasers in Sony did not distribute taped television broadcasts, whereas a
Napster user who downloads a copy of a song could make that song available to millions of other
individuals.^1655 “The global scale of Napster usage and the fact that users avoid paying for songs
that otherwise would not be free militates against a determination that sampling by Napster users
constitute personal or home use in the traditional sense.”^1656
On appeal, Napster argued that the district court erred in concluding that sampling is a
commercial use because it conflated a noncommercial use with a “personal use”; erred in
determining that sampling adversely affects the market for plaintiffs’ copyrighted music; and
(^1652) 464 U.S. 417 (1984).
(^1653) Id. at 442.
(^1654) Napster, 114 F. Supp. 2d at 913. This language suggests that the court may have misunderstood Napster’s
argument about sampling, for the court included under the “sampling” rubric instances in which users
downloaded and retained a permanent copy of songs which they “would otherwise have to purchase.” Napster
defined “sampling” to be those instances in which a user downloaded a song, then followed up with a purchase
of the CD containing the song. In such instances, users would not be obtaining music that they “would
otherwise have to purchase,” and Napster argued that such instances of true sampling should be deemed a fair
use. In any event, the district court found not credible a survey submitted by Napster’s expert showing that
60% of online users who download free digital music do so to preview music before buying the CD, because
Napster’s expert did not conduct the survey. The court further found a survey that the expert did conduct not to
be credible because the court found it inadequately supervised by the expert. Id. at 914. Finally, the court ruled
that even if sampling did enhance sales of plaintiffs’ CDs, that would not tip the balance in favor of fair use,
because “courts have rejected the suggestion that a positive impact on sales negates the copyright holder’s
entitlement to licensing fees or access to derivative markets.”Id.
(^1655) Id. at 913.
(^1656) Id. at 914.