Advanced Copyright Law on the Internet

for direct liability.^138 Mere ownership of an electronic facility by an OSP that responds
automatically to users’ input is not sufficient volition for direct liability. “There are thousands of
owners, contractors, servers, and users involved in the Internet whose role involves the storage
and transmission of data in the establishment and maintenance of an Internet facility. Yet their
conduct is not truly ‘copying’ as understood by the Act; rather, they are conduits from or to
would-be copiers and have no interest in the copy itself.”^139

The 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 transmit
information at the instigation of others does not create sufficiently fixed copies to make it a
direct infringer of copyright.^140 Accordingly, the court concluded, “[a]greeing with the analysis
in Netcom, we hold that the automatic copying, storage and transmission of copyrighted
materials, when instigated by others, does not render an ISP strictly liable for copyright
infringement under §§ 501 and 106 of the Copyright Act.”^141 The court also affirmed the district
court’s ruling that the quick review of photographs performed by LoopNet’s employees before
allowing them to be posted on the site did not amount to “copying,” nor did it add volition to
LoopNet’s involvement in storing the copy.^142

(j) The Ellison Case

The case of Ellison v. Robertson,^143 discussed in detail in Section III.C.6(b)(1)(i) below,
refused to hold an OSP liable for direct infringement based on infringing materials posted on its
service by users without its knowledge on Usenet servers hosted by AOL (infringing copies of
fictional works).

(k) Perfect 10 v. Cybernet Ventures

In Perfect 10, Inc. v. Cybernet Ventures, Inc.,^144 the court refused to hold the defendant
Cybernet, an “age verification service” that enrolled subscribers, after verifying their age as an
adult, to a service that would enable them to gain access for a monthly fee to a large number of
member sites displaying pornographic pictures, liable as a direct copyright infringer based on the
unauthorized presence of the plaintiffs’ copyrighted photographs on several of the member sites.
The court discussed the Netcom, MAPHIA, and Hardenburgh cases (the Hardenburgh case is
discussed in Section II.C below), then concluded as follows:

(^138) Id. at 549.
(^139) Id. at 551.
(^140) Id..
(^141) Id. at 555.
(^142) Id. at 556.
(^143) 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) (district
court’s ruling of no direct infringement not challenged on appeal).
(^144) 213 F. Supp. 2d 1146 (C.D. Cal. 2002).