Advanced Copyright Issues on the Internet - Fenwick & West LLP

their retention time over other types of Usenet files. 1651 The court granted the plaintiffs’ motionfor summary judgment on their claim for vicarious liability. Citing the Supreme Court’sGrokster decision, the court noted that one may be vicariously liable if he has the right andability to supervise the infringing activity and also has a direct financial interest in suchactivities. The court found that the defendants earned a direct financial benefit from theinfringement because their revenues increased depending on their users’ volume of downloads,the majority of which had been shown to be infringing. The court noted also that the infringingcontent on the service acted as a draw for users to subscribe to the service. The court rejectedthe defendants’ argument that they lacked direct financial benefit from infringement becausethey were paid on a per-volume, not per-download, basis and because infringing musicaccounted for less than 1% of the newsgroups available on their service. The court noted thatunder the law, the draw of infringement need not be the primary, or even a significant, draw –rather it need only be “a” draw. 1652The court ruled that the defendants had also failed to exercise their right and ability tostop or limit infringement on their service. The defendants had in the past exercised their rightand ability to control their subscribers’ actions by terminating or limiting access of subscriberswho posted spam, restricted download speeds for subscribers who downloaded adisproportionate volume of content, and taken measures to restrict users from posting ordownloading files containing pornography. 1653 “Defendants likewise have the right and abilityto block access to articles stored on their own servers that contain infringing content, but therecord does not show any instance of Defendants exercising that right and ability to limitinfringement by its users. More generally, Defendants have the right and ability to control whichnewsgroups to accept and maintain on their servers and which to reject, an ability they chose toexercise when they disabled access to approximately 900 music-related newsgroups in 2008.” 1654Accordingly, the court found the defendants vicariously liable. 1655(l)Corbis v. StarrIn Corbis Corp. v. Starr, 1656 the defendant Master, a janitorial maintenance company,hired defendant West Central, an Internet services company, to redesign and host its web site.The redesigned site contained four unauthorized images owned by the plaintiff Corbis. Corbissent a letter to Master notifying it of the infringing images, and Master responded by directingWest Central to remove the images, which West Central did. Corbis then filed suit against thedefendants for copyright infringement and moved for summary judgment. The court found WestCentral directly liable as a matter of law for copying the images onto Master’s web site. It alsofound Master vicariously liable as a matter of law. The control prong of vicarious liability was1651 Id. at 130-31.1652 Id. at 156-57.1653 Id. at 157.1654 Id.1655 Id.1656 2009 U.S. Dist. LEXIS 79626 (N.D. Ohio Sept. 2, 2009).- 360 -