Advanced Copyright Issues on the Internet - Fenwick & West LLP

With respect to the material contribution prong of contributory infringement, AOLargued that as a matter of law, the mere provision of Usenet access was too attenuated from theinfringing activity to constitute a material contribution, citing for support by analogy theprovisions of Section 512(m) of the DMCA that an OSP need not monitor its system forinfringing activity to qualify for the DMCA safe harbors. The district court rejected thisargument, citing the Netcom court’s holding that providing a service that allows for theautomatic distribution of all Usenet postings can constitute a material contribution when the OSPknows or should know of infringing activity on its system and yet continues to aid in thedistribution of the infringing material. Accordingly, the district court ruled that the plaintiff haddemonstrated triable issues of fact on contributory infringement by AOL. 1555 The Ninth Circuitalso affirmed this ruling on appeal. 1556(f)Perfect 10 v. Cybernet VenturesIn Perfect 10, Inc. v. Cybernet Ventures, Inc., 1557 the defendant Cybernet was theoperator of an “age verification service” that enrolled subscribers, after verifying their age as anadult, to a service that would enable them to gain access for a single monthly fee to a largenumber of member sites displaying pornographic pictures. All fees paid by subscribers wentdirectly to Cybernet, which on a semi-monthly basis then paid each individual member site acommission based on the site where the subscriber originally signed up for his or hermembership in Cybernet’s service. 1558 Cybernet exercised some control over the content of eachof its member sites, requiring that each site contain unique and adequate content, whichgenerally meant at least 30 pictures of sufficient quality to provide value to Cybernet’scustomers. Cybernet also imposed a zero tolerance child pornography policy on its membersites. 1559 The court found that Cybernet actively reviewed and directed its affiliated webmasterson the appearance and content of their sites. 1560The plaintiff, Perfect 10, was the holder of copyright in various photographs of nudewomen. Perfect 10 claimed to have found more than 10,000 copies of its photographs onapproximately 900 websites affiliated with Cybernet. 1561 Perfect 10 sought to hold Cybernetliable for the unauthorized presence of its photographs on Cybernet’s member sites.On a motion for a preliminary injunction, the court ruled that Perfect 10 had established astrong likelihood of success on its claim of contributory copyright infringement. The courtfound that Cybernet had knowledge of the infringements because a member for the Associationfor the Protection of Internet <strong>Copyright</strong> had contacted Cybernet with approximately 2,000 emails1555 Ellison v. Robertson, 189 F. Supp. 2d 1051, 1058-60 (C.D. Cal. 2002).1556 Ellison v. Robertson, 357 F.3d 1072, 1078 (9th Cir. 2004).1557 213 F. Supp. 2d 1146 (C.D. Cal. 2002).1558 Id. at 1159.1559 Id. at 1160-61.1560 Id. at 1164.1561 Id. at 1162.- 342 -