concluded that the record established sufficient knowledge to impose contributory liability on
Napster “when linked to demonstrated infringing use of the Napster system. The record supports
the district court’s finding that Napster has actual knowledge that specific infringing material is
available using its system, that it could block access to the system by suppliers of the infringing
material, and that it failed to remove the material.”^1696 Again, the Ninth Circuit’s reference to
“actual” knowledge raises confusion about the extent to which constructive knowledge can give
rise to contributory liability.
(ii) The Material Contribution Prong. With respect to the material contribution
prong of the contributory liability test, the district court ruled that Napster had materially
contributed to the infringing acts of its users. For support, the court cited Fonovisa, Inc. v.
Cherry Auction, Inc.,^1697 in which the owners of copyrights for musical recordings stated a
contributory infringement claim against the operators of a swap meet at which independent
vendors sold counterfeit recordings, because it would have been difficult for the infringing
activity to take place in the massive quantities alleged without the support services provided by
the swap meet. The district court found that Napster was essentially an Internet swap meet and
that Napster was materially contributing to the infringing activity of its users by supplying the
MusicShare software, search engine, servers, and means of establishing a connection between
users’ computers.^1698 “Without the support services defendant provides, Napster users could not
find and download the music they want with the ease of which defendant boasts.”^1699
On appeal in Napster I, the Ninth Circuit found that the district court had correctly
applied the reasoning of Fonovisa. “We agree that Napster provides ‘the site and facilities’ for
direct infringement.”^1700 The Ninth Circuit’s view of the material contribution prong appears to
be very broad sweeping, for it would seem that all service providers provide “the site and
facilities” for any direct infringement that may occur on the service. If this is the only test for
material contribution, it may be difficult for a service provider to use the material contribution
prong as a defense to common law contributory liability.
- The Elements of Vicarious Liability and the Duty to Police.^1701 In order to establish
vicarious 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 the right and ability to supervise the
(^1696) Id. at 1022 (citations omitted; emphasis in original). The second element in the second sentence – that Napster
could block access to the system by suppliers of infringing material – hints of a requirement of “control” over
the infringing activity in the contributory liability analysis. As analyzed below with respect to the imposition of
vicarious liability on Napster, a “control” test has generally been relevant only to vicarious liability. It is
unclear whether the Ninth Circuit really meant to introduce a new “control” test into contributory liability.
(^1697) 76 F.3d 259 (9th Cir. 1996).
(^1698) Napster, 114 F. Supp. 2d at 919-20.
(^1699) Id. at 920.
(^1700) Napster I, 239 F.3d at 1022.
(^1701) Although the issue of online vicarious liability is treated generally in Section III.C.3 below, the vicarious
liability issues in the Napster case will be treated here in order, for clarity, to present the entire analysis of
secondary liability issues involved in the case in a single place.