Paramount Pictures Corporation v. ReplayTV, Inc., Joint Stipulation ...

12345678910111213141516171819202122232425262728received any kind of financial benefit from any non-infringing uses of USENET byits subscribers – or from any use of AOL’ s services generally – such financialbenefit could not have supported the imposition of vicarious liability, since it wouldnot have been directly attributable to the alleged infringement. Id. 63/Judge Cooper went on to emphasize that the DMCA also provided “ at leastpersuasive support for interpreting ‘direct financial benefit’ to require somethingmore than the indirect, insignificant financial benefits that may have accrued toAOL as a result of copyright infringement on its USENET servers.” Id. at *33.See also Costar Group, Inc. v. Loopnet, Inc., 164 F. Supp. 2d 688, 705 (D. Md.2001) (noting that “ safe harbor” of the DMCA, which codified both elements ofvicarious liability, requires the alleged financial benefit “ to be directly attributableto the infringing activity” such that any indirect financial benefit attributable to theinfringement, including any “ added value” to the defendant’ s website resultingfrom the infringement, was insufficient).The foregoing cases leave no doubt that the inquiry under the financialbenefit prong concerns a direct financial benefit. Any financial benefit that is notdirectly attributable to the alleged infringement, or to an alleged infringement thatdoes not serve as the main “ draw” for consumers, cannot satisfy this requirement,and is simply irrelevant to the financial benefit prong.Judge Cooper distinguished Napster on the ground that the Napster servicewas “ devoted to the exchange of MP3 music files which usually containedunauthorized copies of copyrighted material” such that the infringing files were“ Napster’ s main draw.” Ellison, 2002 U.S. Dist. LEXIS at *31 (noting that only atiny fraction of AOL usage had anything to do with USENET, and “ only asubstantially smaller subset of that usage appears to have anything to do withinfringing copyrights” ).63/82