individuals, the court finds that download and uploading MP3 music files with the
assistance of Napster are not private uses. At the very least, a host user sending a
file cannot be said to engage in a personal use when distributing that file to an
anonymous requester. Moreover, the fact that Napster users get for free
something they would ordinarily have to buy suggests that they reap economic
advantages from Napster use.^1645The Ninth Circuit affirmed this ruling in Napster I, agreeing with the district court that
the downloading was not transformative, and that Napster users were engaging in commercial
use of the copyrighted materials because (i) users could not be said to be engaged in a “personal
use” when distributing a file to an anonymous requester and (ii) Napster users get something for
free they would ordinarily have to buy.^1646 “Direct economic benefit is not required to
demonstrate a commercial use. Rather, repeated and exploitative copying of copyrighted works,
even if the copies are not offered for sale, may constitute a commercial use.”^1647 Because the
record demonstrated that Napster users’ repeated copying was made to save the expense of
purchasing authorized copies, such uses were commercial, causing the first factor to weigh in
favor of plaintiffs.^1648
The district court held that the second factor – nature of the copyrighted work – weighed
against fair use because the copyrighted sound recordings and compositions at issue were
creative in nature. The third factor – amount and substantiality of the portion used in relation to
the whole – also weighed against fair use because copies of entire works were being
downloaded.^1649 Finally, the district court found that the fourth factor – the effect on the
potential market for the copyrighted work – weighed against fair use because the plaintiffs had
produced evidence that Napster use harmed the markets for their copyrighted works by (i)
reducing CD sales among college students and (ii) raising barriers to plaintiffs’ own entry into
the market for digital downloading of music because of competition from a service from which
recordings could be obtained free.^1650 The Ninth Circuit affirmed all of these rulings in
Napster I.^1651
- The Sony Doctrine of Substantial Noninfringing Uses. Napster argued that it could
not be contributorily or vicariously liable for operating the Napster service under the doctrine of
(^1645) Napster, 114 F. Supp. 2d at 912.
(^1646) Napster I, 239 F.3d at 1015.
(^1647) Id.
(^1648) Id.
(^1649) Napster, 114 F. Supp. 2d at 913.
(^1650) Id. Napster submitted survey evidence which it argued showed that Napster use actually stimulated more sales
of CDs containing the plaintiffs’ works than it displaced. The court did not find this evidence credible, and
instead credited evidence submitted by the plaintiffs’ experts which the plaintiffs claimed showed that Napster
use was likely to reduce CD purchases by college students. Id. at 909-10.
(^1651) Napster I, 239 F.3d at 1016-17.