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Chapter 2
72. Perfect 10, 508 F.3d at 1173.
73. See Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 262-64 (9th Cir. 1996) (flea market owner had
control over vendors selling counterfeit music recordings based on the flea market’s contractual “right to
terminate vendors for any reason whatsoever and through that right . . . the ability to control the activities of
vendors.”); Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146, 1173-74 (C.D. Cal. 2002) (right
and ability test satisfied where defendant had a monitoring program in place, purportedly refused to allow sites
to use the system until they complied with polices prohibiting infringement, and “control[led] consumer access”
and promoted sites).
74. Napster, 239 F.3d at 1023.
75. See CoStar Group, 373 F.3d at 550 (no direct liability where ISP “designed and managed as a conduit of
information and data”; holding that “in the context of the conduct typically engaged in by an ISP,” Copyright Act
requires “some aspect of volition and meaningful causation-as distinct from passive ownership and management
of an electronic Internet facility”); Cablevision, 536 F.3d at 131 (no direct liability for violation of reproduction
right where cable service’s RS-DVR service copied programs at direction of end-users). As noted, not all courts
have explicitly adopted the “volitional” conduct requirement for direct infringement. See WTV Sys., 824 F. Supp.
2d at 1010 n.7.
76. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007).
77. See, e.g., Napster, 239 F.3d at 1021 (“[A]bsent any specific information which identifies infringing
activity, a computer system operator cannot be liable for contributory infringement merely because the structure
of the system allows for the exchange of copyrighted material.”); Parker v. Google, Inc., 422 F. Supp. 2d 492,
501 (E.D. Pa. 2006), aff’d 242 Fed. Appx. 833 (3rd Cir. 2007) (holding that plaintiff “fails to allege that Google
had requisite knowledge of a third party’s infringing activity, a failure that is fatal to this claim”; finding
insufficient letter to Google that “merely states that the USENET archives contain links to a website that
‘contains several postings of mine for which I have not authorized reproduction’ and does not make any mention
of specific registered works.”).
78. See Capitol Records, Inc. v. MP3tunes, LLC, 821 F. Supp. 2d 627, 648 (S.D.N.Y. Oct. 25, 2011)
(“EMI also established that thousands of MP3tunes users visited those infringing links and sideloaded EMI’s
copyrighted works into their lockers. Moreover, it is undisputed that MP3tunes kept track of that activity. . . .
Thus, there is no genuine dispute that MP3tunes had actual knowledge its users had stored and continued to
have access to infringing copies of Plaintiffs’ works.”); Usenet.com, 633 F. Supp. 2d at 148-49 (rejecting
“passive conduit” defense where, inter alia, defendants were “aware that digital music files were among the
most popular articles on their service”).
79. No. CV 06-5578, 2009 WL 6355911 (C.D. Cal. Dec. 21, 2009).
80. See, e.g., Ellison, 357 F.3d at 1077 (finding that plaintiff emailed AOL about his copyright infringement
claim and that AOL, despite its changed email address, should have been on notice of the infringing activity);
Capitol Records, Inc., 821 F. Supp. 2d at 648 (“MP3tunes’ knowledge of the unauthorized use of infringing
sideloaded material is manifest. EMI sent three separate takedown notifications identifying hundreds of specific
copyrighted works and the specific links on the Sideload website unlawfully distributing those works.”); Vulcan
Golf, LLC v. Google Inc., 552 F. Supp. 2d 752, 770 (N.D. Ill. 2008) (in trademark context, refusing to dismiss
complaint where complaint “alleges that Google was aware of the allegedly infringing nature of the purportedly
deceptive domains” where “notice” provided and “Defendants intentionally and blatantly continue to engage in
the Deceptive Domain Scheme and the other illegal action alleged herein....’)”). But see Costar Group Inc. v.
Loopnet, Inc., 164 F. Supp. 2d 688, 707 (D. Md. 2001) (“notification did not automatically equate to knowledge
for the purpose of assessing liability. Netcom stands for the proposition that the bare claim of infringement by a
copyright holder does not necessarily give rise to knowledge of an infringement.”).
81. See ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619, 622 (4th Cir. 2001) (plaintiff alerted
the defendant to infringement in sufficient detail for DMCA safe harbor purposes when it “identified two sites
created for the sole purpose of publishing ALS Scan’s copyrighted works” and “virtually all the images at the
two sites were [ALS Scan’s] copyrighted material’”).
82. For example, some advertising networks have terms of service that define websites to which they will
not provide advertisements, including sites that violate copyright laws. Postings on blogs and other Internet
commentaries indicate that ad networks do review and reject some applicants. Ad networks may also audit the
actual appearance of the ad and ensure that other terms of the agreement have been honored.
83. 213 F. Supp. 2d 1146 (C.D. Cal. 2002).
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