Disruptive Technology and Common Law Lawmaking: A Brief Analysis of A&M Records, Inc. V. Napster, Inc.
Michael W. Carroll
American University Washington College of Law
Villanova Sports and Entertainment Law Journal, Vol. 9, No. 5, 2002
This symposium Article analyzes the Ninth Circuit's decision in A&M Records, Inc. v. Napster, Inc. After setting the stage with a comparison to the rise of cable television, and a description of the technologies underpinning Napster's service, the Article analyzes the doctrinal developments in the Ninth Circuit's opinion. The principal analytical points are that: (1) the court's definitions of "sampling" and "space-shifting" were overbroad, leading to oversimple fair use analysis; (2) the court's treatment of vicarious liablility for copyright infringement is doctrinally incoherent because it suggests that liability depends on whether a third party has "turn[ed] a blind eye" toward infringement or has exercised its supervisory power over the infringer to the "fullest extent"; and (3) the court's choice to sidestep analysis of the "service provider" safe harbors in Section 512 of the Copyright Act should have been better explained but was understandable given the state of the record.
Number of Pages in PDF File: 44
Keywords: Cyberlaw, Intellectual Property, Copyright, NapsterAccepted Paper Series
Date posted: February 10, 2003
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