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Civil Remedies
Knowledge. The “knowledge requirement for contributory copyright infringement” includes “both
those with actual knowledge and those who have reason to know of direct infringement.” 58
Where the operator of a website actually knows of specific infringements occurring through the
site, then the knowledge prong will be satisfied. 59 If it cannot be shown that the website’s operator
has actual knowledge of specific infringements, it still may be possible to impute to the operator
knowledge of the infringing activity. In particular, if the operator has “willfully blinded” itself to
infringing activity taking place through its site, the operator will be deemed to have actionable
knowledge. 60
Where a copyright owner seeks to impute the website’s operator knowledge “solely because the
design [of the website service] facilitates … infringement[,]” the operator may assert as a defense
that a website is capable of “substantial noninfringing uses.” 61 This defense provides that, where a
product or service is “capable of commercially significant noninfringing uses,” then knowledge
may not be imputed based solely on the service’s design. 62 If the copyright owner does not base his
or her claim of knowledge exclusively on the service’s design, then the “substantial noninfringing
uses” defense will not immunize the site’s operator from contributory infringement liability. 63
Copyright owners should be able to show a Predatory Foreign Website’s knowledge of infringement
in several ways. Depending on the facts, a copyright owner may be able to show that those
who operate the site have actual knowledge of infringements taking place through the site. A
copyright owner could also provide the site with notices of specific infringing copies of works
available through that site, although the task of compiling and sending such notices can be
burdensome and frequently may be futile (since additional copies of the same works can and
usually do replace the copies that are the subject of the notices). If the operators of the site were to
disclaim knowledge of infringement, the copyright owner might be able to show that the operators
took active steps to ensure they would not acquire knowledge of specific infringements.
Material Contribution. A service that provides the “sites and facilities” for third parties to engage
in direct infringement materially contributes to that infringement. 64 Moreover, the Ninth Circuit has
held that “a computer system operator can be held contributorily liable if,” in addition to the actual
knowledge requirement being satisfied, the operator of that system “can take simple measures to
prevent further damage to copyrighted works, yet continues to provide access to infringing
works.” 65 A service can take “simple measures” to reduce infringement if “there are reasonable and
feasible means for [the service] to refrain from providing access to infringing [content].” 66
It seems likely that a website that provides the site and facilities for users to obtain unauthorized
copies of copyrighted works or access to unauthorized performances of works would be deemed to
materially contribute to the infringing conduct.
(2) Inducing Infringement
In Grokster, the Supreme Court held that “one who distributes a device with the object of promoting
its use to infringe copyright, as shown by clear expression or other affirmative steps taken to
foster infringement, is liable for…infringement by third parties.” 67 The Court did not establish a
bright-line test for what is required to show that a website intends to induce infringement. The
Court said that the evidence of defendants’ unlawful objective in that case was “unmistakable,”
given evidence that they “aim[ed] to satisfy a known source of demand for copyright infringement”;
failed to “attempt[] to develop filtering tools or other mechanisms to diminish the infringing
activity using their software”; and operated a business whose “commercial sense ... turn[ed] on
high volume use, which the record shows is infringing.” 68
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