Advanced Copyright Issues on the Internet - Fenwick & West LLP

for direct liability. 134 Mere ownership of an electronic facility by an OSP that respondsautomatically to users’ input is not sufficient volition for direct liability. “There are thousands ofowners, contractors, servers, and users involved in the Internet whose role involves the storageand transmission of data in the establishment and maintenance of an Internet facility. Yet theirconduct is not truly ‘copying’ as understood by the Act; rather, they are conduits from or towould-be copiers and have not interest in the copy itself.” 135The court also inferred a requirement of volition from the statute’s concept of “copying,”which requires the making of “fixed” copies. For the reasons discussed in Section II.A.2 above,the court concluded that transient copies made by an OSP acting merely as a conduit to transmitinformation at the instigation of others does not create sufficiently fixed copies to make it adirect infringer of copyright. 136 Accordingly, the court concluded, “[a]greeing with the analysisin Netcom, we hold that the automatic copying, storage and transmission of copyrightedmaterials, when instigated by others, does not render an ISP strictly liable for copyrightinfringement under §§ 501 and 106 of the <strong>Copyright</strong> Act.” 137 The court also affirmed the districtcourt’s ruling that the quick review of photographs performed by LoopNet’s employees beforeallowing them to be posted on the site did not amount to “copying,” nor did it add volition toLoopNet’s involvement in storing the copy. 138(j)The Ellison CaseThe case of Ellison v. Robertson, 139 discussed in detail in Section III.C.5(b)(1)(i) below,refused to hold an OSP liable for direct infringement based on infringing materials posted on itsservice by users without its knowledge on Usenet servers hosted by AOL (infringing copies offictional works).(k) Perfect 10 v. Cybernet VenturesIn Perfect 10, Inc. v. Cybernet Ventures, Inc., 140 the court refused to hold the defendantCybernet, 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 monthly fee to a large number ofmember sites displaying pornographic pictures, liable as a direct copyright infringer based on theunauthorized presence of the plaintiffs’ copyrighted photographs on several of the member sites.The court discussed the Netcom, MAPHIA, and Hardenburgh cases (the Hardenburgh case isdiscussed in Section II.C below), then concluded as follows:134135136137138139140Id. at 549.Id. at 551.Id..Id. at 555.Id. at 556.189 F. Supp. 2d 1051 (C.D. Cal. 2002), aff’d in part and rev’d in part, 357 F.3d 1072 (9th Cir. 2004) (districtcourt’s ruling of no direct infringement not challenged on appeal).213 F. Supp. 2d 1146 (C.D. Cal. 2002).- 42 -