generalized knowledge that the Napster system might be used for infringing transmissions was
not sufficient for contributory liability, and that in every instance in which Napster received
actual knowledge from the plaintiffs of infringing acts by a specific user, Napster had acted to
terminate such infringing activity. The district court rejected this argument, ruling that actual
knowledge of specific acts of infringement is not required for contributory liability, citing
Gershwin Publ’g Corp. v. Columbia Artists Management, Inc.,^1685 which the court characterized
as holding that general knowledge that third parties performed copyrighted works satisfied the
knowledge element of contributory infringement. Accordingly, “the court rejects defendant’s
argument that titles in the Napster directory cannot be used to distinguish infringing from
noninfringing files and thus that defendant cannot know about infringement by any particular
user of any particular musical recording or composition.”^1686
The district court also rejected Napster’s reliance on the following passage from the
Netcom decision concerning contributory liability of service providers:
Where a BBS [bulletin board service] operator cannot reasonably verify a claim
of infringement, either because of a possible fair use defense, the lack of
copyright notices on the copies, or the copyright holder’s failure to provide the
necessary documentation to show that there is likely infringement, the operator’s
lack of knowledge will be found reasonable and there will be no liability for
contributory infringement for allowing the continued distribution of the works on
its system.^1687The district court held that this language was dicta because the plaintiffs in that case
raised a genuine issue of material fact regarding knowledge. But more importantly, the court
ruled that Napster “is not an Internet service provider that acts as a mere conduit for the transfer
of files.”^1688
One of the important issues on appeal was whether constructive knowledge is sufficient
for contributory liability, or whether actual knowledge of infringing uses is required for liability.
The Ninth Circuit in Napster I began its analysis of the knowledge prong by stating that
contributory liability “requires that the secondary infringer ‘know or have reason to know’ of
direct infringement.”^1689 The Ninth Circuit also stated, “It is apparent from the record that
notice or watermark. MP3 file names are created by users, contain errors, and are variable and undependable.
Finally, Napster argued that song titles could not be used to distinguish authorized files from others because
many song titles are used by multiple artists or there may be multiple recordings of the same work – some of
which are authorized to be shared and others not. Napster’s PI Opp. Br., supra note 1631, at 18-19.(^1685) 443 F.2d 1159, 1163 (2d Cir. 1971).
(^1686) Napster, 114 F. Supp. 2d at 918.
(^1687) Religious Technology Center v. Netcom Online Communication Services, Inc., 907 F. Supp. 1361, 1374 (N.D.
Cal. 1995).
(^1688) Napster, 114 F. Supp. 2d at 919.
(^1689) Napster I, 239 F.3d at 1020 (citing Cable/Home Communication Corp. v. Network Prods., Inc., 902 F.2d 829,
845 & 846 n.29 (11th Cir. 1990).