Advanced Copyright Issues on the Internet - Fenwick & West LLP

summary judgment. The court denied the motion as to contributory infringement, but granted itas to vicarious infringement. 1586 With respect to contributory infringement, the court foundissues of material fact concerning whether direct infringements were taking place on websiteshosted by the defendants, citing internal emails in which defendants discussed attempts to takedown websites selling counterfeit Louis Vuitton products. 1587 The court also found issues ofmaterial fact with respect to the defendants’ knowledge of infringing activity, rejecting thedefendants’ argument that they did not have such knowledge because they did not log on to sitesto investigate complaints of infringing activity, but rather simply took such sites down. Thecourt found this testimony merely served to highlight that there were issues of material factconcerning actual knowledge on the part of defendants, and in any event, the defendants had notsubmitted any testimony with respect to whether they should have known of infringing activityin view of numerous letters from the plaintiff alleging such activity. 1588Finally, citing the Ninth Circuit’s decision in Perfect 10 v. Amazon allowing a finding ofmaterial contribution where an OSP fails to take “simple measures” to limit infringement on itssite, the court found material issues of fact with respect to whether the defendants could havetaken such simple measures based on evidence submitted by the plaintiff that the defendants hadthe ability to remove single websites by disabling IP addresses without taking down an entireserver. The court noted that the defendants had not submitted any evidence indicating thatremoving a web site in this fashion would not be a “simple measure” by which they could purgeinfringing activity using their services. 1589A jury found the defendants liable for willful contributory infringement and awardedstatutory damages, and found that the defendants were not entitled to the safe harbors of theDMCA. After the verdict, the defendants filed a motion for JMOL with respect to the claims andthe DMCA defense. 1590 The court denied the defendants’ motion as to the contributorycopyright claim. With respect to the knowledge requirement, the evidence established that thedefendants had ample actual notice of directly infringing activity on dozens of web sites hostedon the defendants’ servers in the form of many notice letters from the plaintiff identifyingspecific web sites that were selling counterfeit goods infringing the plaintiff’s copyrights. 1591With respect to the material contribution requirement, the defendants provided and operated theservers through which the web sites offering the counterfeit goods were hosted, and continued todo so despite receiving notices from the plaintiff of particular web sites engaged in infringingconduct. One of the defendants testified that he rarely used several of the tools at his disposal to1586 Id. at 1113. The court’s rulings with respect to vicarious infringement are set forth in Section III.C.3(i) below.1587 Id. at 1106.1588 Id. at 1107-08.1589 Id. at 1108-09.1590 Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., 2010 U.S. Dist. LEXIS 85266 (N.D. Cal. Mar. 19,2010) at *1-2.1591 Id. at 17.- 347 -