Napster has knowledge, both actual and constructive, of direct infringement.”^1690 Both of these
statements suggest that constructive knowledge is sufficient to impose contributory liability on a
service provider.
However, further analysis by the Ninth Circuit in its Napster I opinion suggests that
constructive knowledge in the general sense that a service provider may know that its system
could potentially be used for infringing purposes, is insufficient. Specifically, the Ninth Circuit
stated, “We are bound to follow Sony, and will not impute the requisite level of knowledge to
Napster merely because peer-to-peer file sharing technology may be used to infringe plaintiffs’
copyrights.”^1691 Nevertheless, the Ninth Circuit found that “the evidentiary record here
supported the district court’s finding that plaintiffs would likely prevail in establishing that
Napster knew or had reason to know of its users’ infringement of plaintiffs’ copyrights.”^1692
The Ninth Circuit endorsed the analysis of the Netcom decision, “which suggests that in
an online context, evidence of actual knowledge of specific acts of infringement is required to
hold a computer system operator liable for contributory copyright infringement.”^1693 The
reference to “actual knowledge” raises the question whether the Ninth Circuit meant to exclude
constructive knowledge as being sufficient. However, the Ninth Circuit went on to state that the
“court [in Netcom] determined that for the operator to have sufficient knowledge, the copyright
holder must ‘provide the necessary documentation to show there is likely infringement.’”^1694
From this statement, it appears that specific notice from the copyright holder of activity on the
service sufficient to show that there is “likely” infringement can constitute “reason to know.”
Thus, the form of constructive knowledge the Ninth Circuit in Napster I appears to contemplate
as giving rise to potential liability is only one that flows from very specific notice by a copyright
holder of particular potentially infringing activity on the service. What is unclear, however, as
further analyzed below, is the extent to which, once a service provider has been notified of a
particular infringing instance of a work on the service, the service provider then has
“constructive knowledge” of the presence of that work on its service that gives rise to a duty to
police for other infringing occurrences of that work on the system.
Summarizing its endorsement of the Netcom approach, the Ninth Circuit ruled in Napster
I that “if a computer system operator learns of specific infringing material on his system and fails
to purge such material from the system, the operator knows of and contributes to direct
infringement. Conversely, absent any specific information which identifies infringing activity, a
computer system operator cannot be liable for contributory infringement merely because the
structure of the system allows for the exchange of copyrighted material.”^1695 The Ninth Circuit
(^1690) Napster I, 239 F.3d at 1020.
(^1691) Id. at 1020-21.
(^1692) Id. at 1021.
(^1693) Id. (citing Religious Technology Center v. Netcom On-Line Communications Servs., 907 F. Supp. 1361, 1371
(N.D. Cal. 1995)).
(^1694) Napster I, 239 F.3d at 1021 (quoting Netcom, 907 F. Supp. at 1374).
(^1695) Napster I, 239 F.3d at 1021 (citations omitted).