Advanced Copyright Issues on the Internet - Fenwick & West LLP

failed to establish the control prong, it had not pled a viable claim of vicarious liability, and thecourt ruled that it need not reach the issue of direct financial interest. 1639The Ninth Circuit’s rulings were clearly heavily influenced by policy considerations anda belief that to hold tertiary financial service providers secondarily liable for infringing activitieson web sites for which they processed payments would simply go too far. Indeed, the courtbegan its analysis of the secondary liability issues with the following:We evaluate Perfect 10’s claims with an awareness that credit cards serve as theprimary engine of electronic commerce and that Congress has determined it to bethe “policy of the United States – (1) to promote the continued development ofthe Internet and other interactive computer services and other interactive media[and] (2) to preserve the vibrant and competitive free market that presently existsfor the Internet and other interactive computer services, unfettered by Federal orState regulation.” 1640(h) Parker v. GoogleIn Parker v. Google, 1641 pro se plaintiff Gordon Parker was the owner of copyright in ane-book titled “29 Reasons Not To Be A Nice Guy.” He posted Reason # 6 on USENET. Parkerasserted that Google’s automatic archiving of this USENET content made Google vicariouslyliable for copyright infringement because it facilitated users to make unauthorized distributionsand copies of his copyrighted material through Google’s web site, and Google had the right andability to supervise or control such user activity and received a substantial financial benefit fromit in the form of advertising revenue and goodwill. The district court rejected this argument fortwo reasons. First, Parker had failed to allege infringement of any specific registered works thatwere infringed, nor had he alleged specific conduct by a third party that Google may have hadthe right and ability to supervise. Second, his broad allegations that Google’s advertisingrevenue was directly related to the number of Google users was insufficient to maintain a claimof vicarious liability, as it did not allege any actual relationship between infringing activity andthe number of users that would demonstrate an obvious and direct financial interest in infringingactivity. 1642 On appeal, the Third Circuit affirmed in an unpublished decision for the reasonsarticulated by the district court. 1643(i)Louis Vuitton v. Akanoc SolutionsIn Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., 1644 the defendants providedOSP services that hosted websites through which the plaintiff alleged goods were being sold that1639 Id. at *45.1640 Id. at *7 (quoting 47 U.S.C §§ 230(b)(1), (2)).1641 422 F. Supp. 2d 492 (E.D. Pa. 2006), aff’d, 2007 U.S. App. LEXIS 16370 (3d Cir. July 10, 2007).1642 Id. at 499-500.1643 Parker v. Google, 2007 U.S. App. LEXIS 16370 (3d Cir. July 10, 2007).1644 591 F. Supp. 2d 109 (N.D. Cal. 2008).- 358 -