erroneously concluded that sampling is not a fair use because it determined that samplers may
also engage in other infringing activity.^1657 The Ninth Circuit in Napster I rejected these
challenges, ruling that the plaintiffs had “established that they are likely to succeed in proving
that even authorized temporary downloading of individual songs for sampling purposes is
commercial in nature,” based on evidence in the record that the record company plaintiffs collect
royalties for song samples available on Internet retail sites and that such samples, unlike in the
case of Napster, are only partial samples of the whole work and often time out after
download.^1658 In addition, the Ninth Circuit concluded that the record supported the district
court’s preliminary determinations that the more music that sampling users download, the less
likely they are to eventually purchase the recordings on CD, and even if the audio market is not
harmed, Napster had adverse effects on the developing digital download market.^1659 “[P]ositive
impact in one market, here the audio CD market, [should not] deprive the copyright holder of the
right to develop identified alternative markets, here the digital download market.”^1660
- Space-Shifting. As an additional noninfringing use, Napster argued that many Napster
users use the service to “space-shift,” i.e., “converting a CD the consumer already owns into
MP3 format and using Napster to transfer the music to a different computer – from home to
office, for example.”^1661 The district court found that such use was a de minimis portion of
Napster use and not a significant aspect of Napster’s business, and could therefore not qualify as
a substantial noninfringing use under Sony:
According to the court’s understanding of the Napster technology, a user who
wanted to space-shift files from her home to her office would have to log-on to
the system from her home computer, leave that computer online, commute to
work, and log-on to Napster from her office computer to access the desired file.
Common sense dictates that this use does not draw users to the system.^1662As support for its argument that space-shifting constitutes a fair use, Napster invoked the
passage, quoted in subsection 2 above, discussing the AHRA from the Ninth Circuit’s decision in
Recording Indus. Ass’n of Am. v. Diamond Multimedia Sys.^1663 In particular, Napster focused
on the last sentence of that passage, in which the Ninth Circuit stated, “The Rio merely makes
copies in order to render portable, or ‘space-shift,’ those files that already reside on a user’s hard
drive.”^1664 Napster argued that by virtue of this passage, the Ninth Circuit had held that space-
shifting of works already owned constitutes a fair use.
(^1657) Napster I, 239 F.3d at 1018.
(^1658) Id.
(^1659) Id.
(^1660) Id.
(^1661) Napster, 114 F. Supp. 2d at 904.
(^1662) Id. at 904-05.
(^1663) 180 F.3d 1072 (9th Cir. 1999).
(^1664) Id. 1079 (citations omitted).