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Civil Remedies
ISPs and web hosting services play a direct role in the distribution of copyrighted content, the
reproduction of copies on their servers (in the ISP context, such copies are likely transient, or
“cache,” copies), and the public performance and display of such content. The case law regarding
the “volitional” conduct requirement, discussed in footnote 88, generally precludes a theory of
direct infringement, at least as to reproduction and distribution claims in which end users, and not
the intermediaries, initiate the process of copying and transferring files. 75
Various types of services may provide links to infringing content (along with links to non-infringing
content), and may “frame” the display or playback of such content on their own sites. These
services thus may play an important role in the unauthorized performance or display of content.
However, in a significant decision regarding such links and displays, the Ninth Circuit held that
search engine services were not subject to direct liability in these circumstances. The court held
that, while a “search engine communicates HTML instructions that tell a user’s browser where to
find” infringing content, it “does not itself distribute copies of the infringing [content].” Rather, the
court held, it is the infringing website’s “computer that distributes copies” of the infringing content
“by transmitting [it] electronically to the user’s computer.” 76
b) Secondary Liability of Intermediaries—Copyright
Many ISP and web hosting service subscribers and search engine users are engaged in the direct
infringement by transmitting, uploading, and downloading unauthorized copies of copyright
content. Such infringement obviously occurs via the “conduit” services and Internet connectivity
offered by ISPs, on the servers provided by web hosting services, and through the Internet links
generated by search engines. Other intermediaries, such as advertising networks, provide a source
of revenue for infringing websites. This section discusses the potential bases under current law for
claims of secondary liability against such intermediaries.
(1) Contributory Infringement
Knowledge. Courts generally have been hesitant to find that an intermediary has actual knowledge
of infringement without the provision of notice of specific infringing sites. 77 To the extent intermediaries
use technologies to track and analyze user behavior, that may result in them being found to
have imputed knowledge of infringing conduct even in the absence of any specific notice. 78 For
example, to the extent an intermediary’s technology responds to user behavior, and that behavior is
infringing conduct, an intermediary may be found to have knowledge of infringement. In Columbia
Pictures Industries, Inc. v. Fung, 79 the court found knowledge under the DMCA safe harbor
provisions where “Defendants designed their website to include lists such as ‘Top Searches,’ ‘Top
20 Movies,’ ‘Top 20 TV Shows,’ and ‘Box Office Movies,’ and Defendants designed these lists to
automatically update to reflect user activities. These lists included numerous copyrighted works.”
Id. at *17 (emphasis added).
If notice of specific instances of infringement is provided, courts generally have found that actual
knowledge exists. 80 Where the underlying sites at issue are predominantly populated with infringing
material, courts have suggested that notice of the general site with a list of infringing works
available on that site may be sufficient for notice purposes. 81
To the extent that the intermediary conducts some sort of pre-approval review before allowing
websites to engage in the intermediary’s network, 82 such review has been found sufficient to
establish knowledge for contributory infringement. In Perfect 10, Inc. v. Cybernet Ventures, Inc., 83
for example, the defendant’s “site reviewers review[ed] every site before allowing the sites to
utilize the Adult Check system… Although they might not detect every copyright violation, there
is evidence that many sites contain disclaimers to the effect, ‘we do not hold copyrights for these
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