possess constructive knowledge if he has reason to know a third party’s direct infringement.”^1753
The district court rejected Napster’s argument that Napster I created a stricter standard of
knowledge for service providers in an online context – namely, actual knowledge in the form of
notice of specific copyrighted works from the plaintiffs prior to suit. Napster argued that it could
not be held liable until such notice was given because its duty under Napster I to disable the
offending material arose only after the plaintiffs provided notice.^1754 The court ruled that
“[c]ontrary to Napster’s contention, Napster I did not create a new knowledge standard for
contributory infringement. Instead, the court relied on the traditional formulation that either
constructive or actual knowledge is sufficient to impose liability on Napster for contributory
infringement.”^1755
The district court acknowledged some lack of clarity in the Ninth Circuit’s Napster I
opinion on the issue of knowledge, as discussed earlier in this paper: “The court is aware that
the Ninth Circuit’s reference to actual knowledge and failure to remove access might lead to
some confusion. Lacking a more definitive statement from the Court of Appeals, the court
understands the Ninth Circuit to hold that a range of conduct, when linked to Napster’s system,
may give rise to constructive or actual knowledge. Conduct sufficient for liability may take
forms other than as a combination of actual knowledge and failure to block access. ... Plaintiffs
allege that Napster knew of music piracy on its system, that it had the ability to patrol its
database, that Napster had knowledge of some specific infringing files, and did nothing to
prevent continued infringement. If these allegations are true, plaintiffs are entitled to at least
preliminary injunctive relief under the reasoning of [Napster I].”^1756
With respect to vicarious liability, the court noted that Napster had not challenged the
plaintiffs’ allegations of control and financial interest, but instead had argued that notice is an
additional required element for both vicarious and contributory copyright infringement on the
part of online service providers.^1757 The court therefore turned to the issue of notice as a separate
element of secondary infringement. Napster based its notice argument on the Ninth Circuit’s
modification in Napster I of the district court’s original July 2000 preliminary injunction as being
overbroad and its statement that “the burden [is] on plaintiffs to provide notice to Napster of
copyrighted works and files containing such works available on the Napster system before
Napster has the duty to disable access to the offending content.”^1758 Napster argued that this
statement mandated notice as a necessary element of secondary infringement, and that any
complaint failing to allege both notice prior to suit and Napster’s subsequent failure to disable
infringing material was deficient.^1759
(^1753) Id. at 14-15.
(^1754) Id. at 15-16.
(^1755) Id. at 16.
(^1756) Id. at 23-24.
(^1757) Id. at 26.
(^1758) Id. at 28-29 (quoting Napster I, 239 F.3d at 1027).
(^1759) Fonovisa v. Napster, 2002 U.S. Dist. LEXIS 4270, at *29.