1oz61wa

Civil Remedies
Whether the Predatory Foreign Website will be directly liable for violating the copyright owner’s
exclusive rights depends upon whether that site is found to be making the unauthorized reproductions.
If the site is not doing the copying, but rather is facilitating or encouraging individual users’
or other websites’ copying, then the basis for the Predatory Foreign Website’s liability would be
secondary, not direct.
A clear case where a website would be directly liable for unauthorized copying would exist where
the site itself placed copies of copyrighted works on its own servers. In that case, the site itself
would be liable for the infringement of each work that it copied to its servers. 38
Predatory Foreign Websites typically do not themselves “upload” copyrighted content to their own
servers, thereby making an unauthorized reproduction. Whether a site would be found directly or
secondarily liability depends on the facts of how unauthorized copies are made and how much
interaction the site has with the process of making them. In the case of a site that “hosts” copyrighted
content on its own servers that users submit to the site, and where the site itself has no
interaction with the copying process apart from storing the content (and being the location from
which others copy it), a direct liability claim may be more difficult to prove and secondary infringement
claims may be more likely to succeed. 39
On the other hand, a website may be subject to direct liability where it does not simply engage in
automated copying in response to users’ commands, but makes additional contributions to the
creation of the copy. 40 For example, in a case involving widespread uploading and downloading of
copyrighted content through a network of computers called the USENET, the court held that the
defendant service operators did enough themselves to be deemed directly liable for infringement. 41
The court said that the defendants were “aware that digital music files were among the most
popular articles on their service,” took “active measures to create servers dedicated to mp3 files and
to increase the retention times of newsgroups containing digital music files,” and took “active
steps” to “remove access to certain categories of content, and to block certain users.” 42
(2) Right of Distribution
The owner of copyright also has the exclusive right to distribute copies of their work “to the public
by sale or other transfer of ownership, or by rental, lease, or lending.” 43
Where users are able to obtain unauthorized copies of copyrighted works through a Predatory
Foreign Website—for example, where users download copies directly from the site—the site is
likely a direct infringer of the distribution right. 44 Where the Predatory Foreign Website’s role is to
facilitate or encourage users to obtain copies from other sites, then the Predatory Foreign Website’s
potential liability is secondary.
Although a Predatory Foreign Website may be directly liable for infringing the distribution right,
there is some disagreement in the case law about what proof is required to establish that the
distribution right has been infringed in the Internet context. In particular, there is some disagreement
whether the plaintiff claiming an infringement of this right must show that a file containing
an infringing copy of the copyrighted work has actually been transferred to the party that requested
it. This proof issue has significance to proving direct infringement of the distribution right because
Predatory Foreign Websites are unlikely to maintain records of the files transferred through their
service.
In the Ninth Circuit’s original Napster decision, the court held that there was a direct infringement
of the distribution right by Napster users “who upload files names to the search index for others to
copy,” 45 which would indicate that no proof of actual transfer is required. In a later proceeding
arising out of the Napster litigation, the district court held that a violation of the distribution right
13