Thus, in order to analyze the required element of knowledge of infringement, we
must first determine what level of knowledge to require. If the product at issue is
not capable of substantial or commercially significant noninfringing uses, then the
copyright owner need only show that the defendant had constructive knowledge
of the infringement. On the other hand, if the product at issue is capable of
substantial or commercially significant noninfringing uses, then the copyright
owner must demonstrate that the defendant had reasonable knowledge of specific
infringing files and failed to act on that knowledge to prevent infringement.^1867Thus, the Ninth Circuit in effect read the Sony case as essentially nothing more than a
gloss on the knowledge prong of contributory liability (and therefore inapplicable to vicarious
liability), rather than an independent defense to any secondary copyright liability based upon the
sale and distribution of technology that is capable of substantial noninfringing uses. The Ninth
Circuit further noted that Judge Posner had, in the Aimster case discussed in Section III.C.2(c)(3)
above, read Sony’s substantial noninfringing use standard differently by looking at how
“probable” the noninfringing uses of a product are. The Ninth Circuit stated that it simply did
not read Sony as narrowly as Judge Posner did.^1868
Because there was no genuine issue of material fact that there were substantial
noninfringing uses of the defendants’ software, the court concluded that the “reasonable
knowledge of specific infringement” requirement was to be applied, and turned to an analysis of
whether the copyright owners had raised sufficient genuine issues of material fact to satisfy that
higher standard. The Ninth Circuit agreed with the district court that the plaintiffs’ notices of
infringement were irrelevant to the knowledge prong because they arrived when the defendants
did nothing to facilitate, and could not do anything to stop, the alleged infringement of the
specific copyrighted content.^1869 The court emphasized the great import of the software design
to its holding. Unlike the Napster case, in which Napster maintained a centralized set of servers
with an index of available files, no central index was maintained by the defendants’ software.
Accordingly, even if the defendants were to close their doors and deactivate all their computers,
users of their products could continue sharing files with little interruption.^1870
Turning to the material contribution prong, the Ninth Circuit agreed with the district
court’s conclusion that the defendants did not provide the “site and facilities” for infringement
because the defendants did not provide file storage or index maintenance on their computers, nor
did the defendants have the ability to suspend user accounts.^1871 “Rather, it is the users of the
software who, by connecting to each other over the internet, create the network and provide the
access. ‘Failure’ to alter software located on another’s computer is simply not akin to the failure
to delete a filename from one’s own computer, to the failure to cancel the registration name and
(^1867) Id. at 1161.
(^1868) Id. at 1162 n.9.
(^1869) Id. at 1162.
(^1870) Id. at 1163.
(^1871) Id.