Vol 7 No 1 - Roger Williams University School of Law

was evident;312Did they sell the technology knowing people would use itfor copyright infringement? In the Sony case the courtsaid no—in Napster, the court said yes.313The next issue was that of vicarious infringement. The courtconsidered the following elements:Did Napster have authority to control or superviseinfringement? Yes, because it could monitor songnames;314Did Napster gain a direct financial benefit frominfringement? Yes, because it gained more users andvalue through the infringement.315The court also stated that the Sony defence does not apply toan action for vicarious copyright liability.316 Waiver, impliedlicence and copyright misuse arguments were all rejected.317 Thescope of the injunction was readjusted so that song names had tobe delivered to Napster by the record companies.318 The court ofappeals left open the question of the application of the ISPimmunity provisions of the DMCA to Napster.319 Napster is nowengaged in a process of signing licence agreements with musiccompanies in the increasingly pay-per-view/hear world.The key question arising out of this case is whether copyrightis killing technological innovation. Should the developer orinnovator be liable for copyright infringement in this case? Whatwill this do for technological innovation? This is a case ofcopyright versus cultural/social/communicative experiment—should copyright give way a little?Consider Sony, where it was held that a “finding ofcontributory infringement effectively extends the grant of power toencompass the accused instrumentality—where a technology hasother lawful uses such a rule would block the wheels of312. See id. at 1020.313. Id. at 1020-21.314. Id. at 1023.315. Id.316. Id. at 1022.317. See Napster, 239 F.3d at 1026-27.318. Id. at 1027.319. Id. at 1025.