Vol 7 No 1 - Roger Williams University School of Law

“staple article of commerce” doctrine in U.S. patent law,303 heldthat Sony was not liable for copyright infringement for making avideo recorder because a video recorder has substantial noncopyrightinfringing uses, such as time shifting, i.e., recordingmaterial so that you can watch it at a later date.304 CouldNapster rely on the same Sony defence?Ultimately, Napster was sued for copyright infringement onthe basis of contributory or vicarious copyright infringement.305Before those actions could be established, the court had todetermine whether there had been any direct infringement by theend consumers.306 The court concluded that there had been.307The court rejected arguments based on fair use sampling(listening to see if they liked the music) and space shifting(location of where one listened to the music).308 The court rejectedarguments based on sampling, saying that there was evidence toshow that sampling ruined the full commercial exploitation of thesongs, and on space shifting, saying this was not like Sony in thatspace shifting in this instance opened up copied product to theworld.309The next issue the court considered was whether there wascontributory infringement. They listed the following elements:Did Napster know or should they have known of theinfringement—actual or constructive knowledge? Yes,they knew users were swapping infringing files;310Did Napster materially contribute to the infringement?Yes, they provided software;311Were there any defences? No. The court assessed theSony substantial non-infringing use defence, explainingthat current and future uses need to be considered, butdecided the Sony defence did not apply once knowledge303. 35 U.S.C. § 271(c) (1994 & Supp. V 1999).304. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984).305. A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).306. Id. at 1013.307. Id. at 1016.308. Id. at 1018-19.309. Id. at 1019.310. See id. at 1020-22.311. See Napster, 239 F.3d at 1022.