Advanced Copyright Issues on the Internet - Fenwick & West LLP

contributory copyright infringement. 1696 AOL asserted that the plaintiff could not establish theelements for common law liability and that it was immune under the Section 512(a) and Section512(c) safe harbors of the DMCA. The district court, relying on the Netcom case, ruled thatAOL could not be liable for direct copyright infringement merely based on its passive role as aprovider of Usenet services. 1697 The court’s rulings with respect to contributory infringement arediscussed in Section III.C.2(e) above.With respect to vicarious liability, the plaintiff argued that, under the Ninth Circuit’sNapster I decision, AOL’s ability to block infringers’ access to its Usenet servers was sufficientto establish the right and ability to control infringing activity. The court rejected this argument,noting the same Catch 22 under the Section 512(c) safe harbor this would set up that the courtnoted in the Hendrickson v. eBay case: Because an OSP is required under Section 512(c)(1)(C)to delete or block access to infringing material, if this ability to delete or block were sufficient toestablish the “right and ability to control” infringing activity, the OSP would thereby bedisqualified from the safe harbor under Section 512(c)(1)(B), at least if it received a financialbenefit directly attributable to the infringing activity. 1698 “The Court does not accept thatCongress would express [an intention that ISPs which receive a financial benefit directlyattributable to the infringing activity could not qualify for the Section 512(c) safe harbor underany circumstance] by creating a confusing, self-contradictory catch-22 situation that pits512(c)(1)(B) and 512(c)(1)(C) directly at odds with one another, particularly when there is amuch simpler explanation: the DMCA requires more than the mere ability to delete and blockaccess to infringing material after that material has been posted in order for the ISP to be said tohave ‘the right and ability to control such activity.’” 1699The court further found that AOL’s right and ability to control the infringing behaviorwas substantially less than that enjoyed by the OSP in the Netcom case, where the OSP was oneof two entities responsible for providing the direct infringer with access to the Internet. As aresult, by taking affirmative steps against the other entity, the OSP had the ability to target theinfringer himself and deny him access to the Internet. By contrast, AOL had no such ability togo after the individual who had posted the infringing copies of the plaintiff’s works onto Usenet.The court therefore concluded that AOL’s ability to delete or block access to the infringingpostings after they had found their way onto AOL’s Usenet servers was insufficient to constitutethe right and ability to control the infringing activity for purposes of common law vicariousliability. 1700With respect to the financial benefit prong of vicarious liability, the district court heldthat AOL received no direct financial benefit from the infringing activity. The court ruled thatthe direct financial benefit prong requires a showing that a “substantial” proportion of a1696 Id. at 1053-54.1697 Id. at 1056.1698 Id. at 1060-61.1699 Id. at 1061.1700 Id. at 1061-62.- 371 -