On appeal, the Ninth Circuit in Napster I also did not draw a distinction between a device
and a service for purposes of applying the Sony doctrine, but rather, like the district court,
distinguished between the Napster service itself and Napster’s relation to the operational use of
the system: “We are compelled to make a clear distinction between the architecture of the
Napster system and Napster’s conduct in relation to the operational capacity of the system.”^1677
Thus, Napster could not be contributorily liable merely for offering a service that could be used
for infringing uses, but could be liable if it had sufficient specific knowledge of use of the service
for infringing purposes in particular instances.^1678 This knowledge requirement is discussed
further in the next subsection.
- The Elements of Contributory Liability. In order to establish contributory liability for
the acts of direct infringement by Napster’s users, the district court noted that the plaintiffs were
required to show that Napster had knowledge of the infringing activity and that it induced,
caused or materially contributed to the infringing conduct.^1679
(i) The Knowledge Prong. With respect to the knowledge prong, the district
court found the plaintiffs had presented convincing evidence that Napster had both actual and
constructive knowledge of its users’ infringements. The district court found actual knowledge
because: (1) a document authored by a co-founder of Napster, Sean Parker, mentioned the need
to remain ignorant of users’ real names and IP addresses “since they are exchanging pirated
music”;^1680 and (2) the RIAA had informed Napster of more than 12,000 infringing music files
being shared through the Napster system.^1681 Although Napster had terminated the accounts of
the users offering those files, the district court noted that the songs were still available using the
Napster service, as were other copyrighted works identified in the Schedules to the plaintiffs’
complaint.^1682 The district court found constructive knowledge on Napster’s part because: (1)
Napster executives had recording industry experience; (2) Napster possessed enough
sophistication about intellectual property laws to make claims against a rock band that copied its
logo; (3) Napster executives had downloaded copyrighted songs from the system; and (4) they
had promoted the site with screen shots listing infringing files.^1683
Napster had argued that the law of contributory infringement requires actual knowledge
of specific acts of infringement (which Napster argued that it did not have),^1684 that mere
(^1677) Napster I, 239 F.3d at 1020.
(^1678) Id. at 1020-21.
(^1679) Napster, 114 F. Supp. 2d at 918 (citing Gershwin Publ’g Corp. v. Columbia Artists Management, Inc., 443 F.2d
1159, 1162 (2d Cir. 1971)).
(^1680) 114 F. Supp. 2d at 918 (emphasis in original).
(^1681) Id.
(^1682) Id.
(^1683) Id. at 919.
(^1684) Napster argued that it had no specific knowledge that any particular use of a file through its system was
unauthorized. In particular, Napster argued that it could not know, any more than a photocopier or video
recorder manufacturer, which uses of its system were fair or not. Napster further argued that it could not know
the copyright status of its users’ files. Neither CD audio files nor the resultant MP3 files carried any copyright