1oz61wa

Civil Remedies
25. See BAE Systems Detica, The Six Business Models for Copyright Infringement (June 27, 2012)
(available at http://www.baesystemsdetica.com/uploads/resources/
The_six_business_models_for_copyright_infringement1.pdf).
26. “Organic search results are listings on search engine results pages that appear because of their relevance
to the search terms, as opposed to their being advertisements.” “Organic Search,” Wikipedia (available at http://
en.wikipedia.org/wiki/Organic_search).
27. Google has defended its treatment of counterfeit goods as follows: “Google also expends great effort to
meet the challenge of counterfeit goods. Since June 2010, we have shut down nearly 150,000 accounts for
attempting to use sponsored links to advertise counterfeit goods. Most of these were proactive removals, done
on our own initiative — we received legitimate complaints about less than one quarter of one per cent of our
advertisers. Even more ads were blocked on suspicion of policy violations. Our automated tools analyze
thousands of signals to help prevent bad ads from being shown in sponsored links. Last year alone we invested
$60 million in efforts to prevent violations of our ad policies.” Testimony of Katherine Oyama, Copyright
Counsel, Google, Inc., before the House of Rep. Committee on the Judiciary (Nov. 16, 2011) (available at http://
judiciary.house.gov/_files/hearings/pdf/Oyama%2011162011.pdf).
28. See “Advertising on Google AdWords: An Overview,” Google.com (available at http://
support.google.com/adwords/bin/answer.py?hl=en&answer=1704410); compare with “bing ads,” Bing.com
(available at http://advertising.microsoft.com/small-business/bing-yahoo-search).
29. See, e.g., “AdWords Trademark Policy,” Google.com(available at http://support.google.com/
adwordspolicy/bin/answer.py?hl=en&answer=6118).
30. See “Internet Service,” Comcast.com (available at http://www.comcast.com/internet-service.html).
31. See “High Speed Internet,” Verizon.com (available at http://www22.verizon.com/home/
highspeedinternet/).
32. “Web hosting service,” Wikipedia (available at http://en.wikipedia.org/wiki/Web_hosting_service).
33. Id.
34. Robert J. Abalos, “Commercial Trademark Counterfeiting in the United States, the Third World and
Beyond: American and International Attempts to Stem the Tide,” 5 B.C. Third World L.J. 151 (1985) (available
at http://lawdigitalcommons.bc.edu/twlj/vol5/iss2/4/).
35. Enforceable jurisdiction encompasses not only personal jurisdiction over the relevant entity (e.g., the
website’s operators), but also the ability to enforce a judgment against such entity. See Section III.D.
36. Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004).
37. 17 U.S.C. §106(1).
38. See UMG Recordings, Inc. v. MP3.Com, Inc., 92 F. Supp. 2d 349, 350 (S.D.N.Y. 2000) (finding
defendant service directly liable for infringing reproduction right by copying tens of thousands of CDs to its
central servers).
39. There is a split in authority whether “volitional” conduct is required to show direct infringement.
Compare CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544, 550 (4th Cir. 2004) (“to establish direct liability
under . . . the Act, something more must be shown than mere ownership of a machine used by others to make
illegal copies. There must be actual infringing conduct with a nexus sufficiently close and causal to the illegal
copying that one could conclude that the machine owner himself trespassed on the exclusive domain of the
copyright owner.”) with Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121, 130-33 (2d Cir.
2008) (“Cablevision”) (the person who actually presses the button to make the recording supplies the necessary
element of volition, not the person who manufactures, maintains, or owns the machine). Other courts, however,
have either rejected or expressed skepticism whether there is a “volitional” conduct requirement for direct
copyright infringement, for which there is strict liability and no intent requirement. See, e.g., Warner Bros.
Entertainment Inc. v. WTV Sys., Inc., 824 F. Supp. 2d 1003, 1011 n.7 (C.D. Cal. 2011) (“no Ninth Circuit case
has adopted this volitional conduct requirement,” and “in light of the fact that copyright infringement is a strict
liability offense, the Court is not inclined to adopt a volitional conduct requirement without clear instruction from
the Ninth Circuit”) (quoting Arista Records, LLC v. Myxer, Inc., No. CV-08-3935-GAF at 25 (C.D. Cal. Apr. 1,
2011) (noting that the Ninth Circuit has “consciously declined” to adopt a volition requirement despite having
the opportunity to do so in cases “since Cartoon Network and CoStar Group were each decided”)). Courts that
have adopted the volitional conduct requirement for direct liability have made clear that the operator of the
automated reproduction service may be liable for secondary infringement. See Cablevision, 536 F.3d at 132.
Secondary liability claims are discussed below.
40. Arista Records LLC v. Usenet.com, Inc., 633 F. Supp. 2d 124, 148 (S.D.N.Y. 2009).
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