The Napster Case
Oral Arguments Before the U.S. Court of Appeals for the Ninth Circuit
October 2, 2000
David Boies for Appellant Napster
Introduction of Argument
Plaintiffs are making four unprecedented requests: to hold a company liable for contributory
infringement when direct infringer is not engaged in commercial activity and has no commercial
relationship with users; find liability for supplying technology capable of significant
non-infringing use; agree that consumers violate copyright law when they share recorded
music on a non-commercial basis; and find that an ISP is liable for the activity
of its users when the ISP had not knowledge of the unlawful activity.
Discussion of Sony
Like the Napster case, Sony involved a new technology, advertising and sale of
the new technology, and the primary purpose of the new technology was to copy protected
works without authorization.
Differences Between VCR and Napster
Nothing in Sony says that the manufacturer should have continued monitoring of the
consumer. Napster provides software and a directory, but that is the extent of the
relationship with the consumer. Upon requests by copyright owners, Napster has terminated
tens of thousands of infringing sites. Space shifting is fair use because it is private and
Analogy to Patent Law
A non-infringing use does not have to be the predominant use for it to be substantial. The
U.S. Supreme Court found a single movie to be a substantial non-infringing use in Sony.
Lawful uses of the Napster technology increase every day as more and more copyright owners
provide authorization for distribution of MP3 files.
Distinction Between Device and Service
Napster provides both a mechanical device and a service. The directory of sites is not a
device. The VCR is distinctly a device. Napster can be broken down into directory, server
Breadth of Injunction
The District Court enjoined the distribution of both infringing and non-infringing
material and as such is a form of prior restraint. The First Amendment does not allow
an injunction forbidding the use of a directory service. Therefore, the injunction is
Vicarious liability comes out of enterprise liability so the direct infringer must be
engaged in commercial activity for contributory infringement to lie.
Russell Frackman for Respondent RIAA
Carey Ramos for Lieber & Stoller
Evidence before the District Court showed that Napster designed the service for the purpose
of exchaning pirated music.
Distinguishing Napster from VCR
Judge Patel did not intend to shut down Napster. Even if it did, damage to Napster is
speculative, particularly in relation to the very real damage being done to plaintiffs.
Even if it does shut down the company, that is their own fault for designing a piracy system.
Napster is nothing like the VCR because the material is not available without Napster.
Napster's ongoing service makes it different from the VCR for a number of reasons.
Discussion of Fonovisa
Files do not go through the Napster service, but the users would not be able to connect
without Napster supplying the IP addresses of other users. The swap meet owner in Fonovisa
did not have his fingerprints on the cassette tapes. There was no evidence that the owner
knew that pirated material was being sold on his premises. Napster's own DMCA compliance
officer downloaded copyrighted material.
Shut Down the Business, Not the Technology
Napster cannot avoid liability by avoiding specific knowledge where it has general
knowledge that 80%-90% of the use is unlawful. The District Court specifically found that
none of the purported non-infringing uses was substantial. Hypothetical non-infringing uses
do not justify the wholesale infringement of current copyrights. Even if Napster has to shut
down, only its business is affected, not the availability of peer-to-peer technology.
Analogy to Car Theft
Plaintiff's marketing does not justify Napster's conduct any more than leaving the keys
in the car justifies grand theft auto.
Napster is the source of the problem, not the individual direct infringers.
David Boies for Napster
Interests of Songwriters
Songwriters rely on copyright law for their livelihood, licensing in return for royalties.
Congress has stated that copyright owners control the rights to digital copies. The preliminary
injunction covers only the plaintiffs' works and the plaintiffs have provided lists of
those works to the defendant and the district court.
Burden of Proof is on Plaintiffs
At the preliminary injunction stage, plaintiff bears the burden of proving that defendant
is not entitled to the affirmative defenses raised. Since Judge Patel erroneously placed
this burden on defendant, the district court's reliance upon some facts was misplaced.
Space Shifting is Fair Use
Judge Patel should not have ignored the substantial non-infringing use of space shifting.
In addition, over 20,000 artists have given permission to have their works shared, so
distribution of those works is lawful.