1oz61wa

Civil Remedies
121, 134-35 (2d Cir. 2008). The applicability of Cablevision’s public performance holding to other services is a
matter of ongoing litigation. Compare Warner Bros. Entm’t Inc. v. WTV Sys., Inc., 824 F. Supp. 2d 1003, 1011
n.7 (C.D. Cal. 2011) (holding Cablevision was inapposite where the defendant transmitted performances from
DVDs at its facilities to Internet subscribers) with ABC, Inc. v. Aereo, Inc., 874 F. Supp. 2d 373, (S.D.N.Y. July
11, 2012) aff’d sub nom WNET, Thirteen v. Aereo, Inc. 712 F.3d 676 (2d Cir. 2013) (cert. granted by ABC, Inc.
v. Aereo, Inc., 134 S.Ct. 896 (2014) (declining to issue preliminary injunction where defendant service captured
over-the-air broadcast signals and re-transmitted them over the Internet to subscribers using separate individual
copies of the same programming for transmissions to each requesting user).
53. Although, as noted above, some courts have held that “volitional” conduct is required to violate directly
the reproduction right, even the cases that have recognized such a requirement have been equivocal whether that
requirement applies to the public performance right. The Cablevision court said that its holding as to the
reproduction right “does not dictate a parallel conclusion that the customer, and not [the service] ‘performs’ the
copyrighted work[,]” because “[t]he definitions that delineate the contours of the reproduction and public
performance rights vary in significant ways.” Cablevision, 536 F.3d at 134.
54. See, e.g., Aimster, 334 F.3d 643, 645-46 (7th Cir. 2003); Gershwin Pub’g Corp. v. Columbia Artists
Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971).
55. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 929-30 (2005).
56. See, e.g., Faulkner v. National Geographic Enters. Inc., 409 F.3d 26, 40 (2d Cir. 2005).
57. See, e.g., A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1019 (9th Cir. 2001); Gershwin Pub’g,
443 F.2d at 1162.
58. Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004).
59. See Napster, 239 F.3d at 1021-22, n.6 (citing A&M Records, Inc. v. Napster, 114 F. Supp. 2d 896, 918,
920-21 (N.D. Cal. 2000)) (finding Napster had knowledge where RIAA informed Napster of more than 12,000
infringing tracks available through the Napster service; “[a]though Napster, Inc. purportedly terminated the users
offering these files, the songs are still available using the Napster service”).
60. See Aimster, 334 F.3d at 650 (“Willful blindness is knowledge, in copyright law … as it is in the law
generally.”). In Aimster, the service utilized encryption of files being uploaded and downloaded so the service
would not know which specific works were being copied. The Seventh Circuit held that the service and its
owner had actual knowledge of the unlawful infringements they were facilitating.
61. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1170 (9th Cir. 2007) (“Perfect 10”).
62. Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417, 442 (1984); Grokster, 545 U.S. at 931-32;
Perfect 10, 508 F.3d at 1170.
63. Perfect 10, 508 F.3d at 1170.
64. Napster, 239 F.3d at 1022 (“without the support services defendant provides, [] users could not find
and download the music they want with the ease of which defendant boasts.”).
65. Perfect 10, 508 F.3d at 1172 (quoting Religious Tech. Ctr. v. Netcom Online Commc’n Servs, Inc., 907
F. Supp. 1361, 1375 (N.D. Cal. 1995)). .
66. Id. at 1172-73.
67. Grokster, 545 U.S. at 919. Some courts have questioned whether “inducement” liability is a separate
claim for relief, or a subset of general contributory liability. See, e.g., IO Group, Inc. v. Jordon, 708 F. Supp. 2d
989, 999 (N.D. Cal. 2010) (“Given that Grokster explicitly states that ‘one infringes contributorily by intentionally
inducing’ infringement, this Court cannot find that inducement to infringe is a separate claim from contributory
infringement.”); Arista Records LLC v. Usenet.com, 633 F. Supp. 2d 125, 150 n.17 (S.D.N.Y. 2009)
(“several courts recently have expressed doubt as to whether inducement of infringement states a separate claim
for relief, or rather whether it is a species of contributory infringement”). For purposes of this discussion, it is
not material whether inducement is a particular form of contributory infringement or a separate stand-alone
claim.
68. Grokster, 545 U.S. at 939-40.
69. See Arista Records LLC v. Lime Group LLC, 784 F. Supp. 2d 398, 426-31 (S.D.N.Y. 2011); Arista
Records, LLC v. Usenet.com, 633 F. Supp. 2d at 151-54; Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,
454 F. Supp. 2d 966, 984-92 (C.D. Cal. 2006).
70. See Grokster, 545 U.S. at 930; Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F.2d 304, 307 (2d Cir.
1963). See also Hotfile, supra fn. 10.
71. See, e.g., Grokster, 545 U.S. at 926 (“As the number of users . . . increases, advertising opportunities
become worth more”); Napster, 239 F.3d at 1023 (“Ample evidence supports the district court’s finding that
Napster’s future revenue is directly dependent upon ‘increases in user-base.’”).
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