Nine years ago, the U.S. Court of Appeals for the Ninth Circuit, upheld the shut-down of the Napster file-sharing service in an opinion that was a blow to college students everywhere, but not a particular surprise to intellectual property lawyers. The takeaway from that case: at least for purposes of contributory copyright infringement, Napster is a flea market.
The Ninth Circuit upheld the District Court’s reliance on Fonovisa Inc. v. Cherry Auction Inc.,1 a case involving the sale of booth space at a flea market to sellers known to be selling infringing material. The lower court had found that Napster was essentially the same as the flea-market operator, in that it was knowingly providing a service used by infringers and so could be held liable for contributory infringement, and the Ninth Circuit agreed.2
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