A jury found the defendants liable for willful contributory infringement and awarded
statutory damages, and found that the defendants were not entitled to the safe harbors of the
DMCA. After the verdict, the defendants filed a motion for JMOL with respect to the claims and
the DMCA defense.^2056 The court denied the defendants’ motion as to the contributory copyright
claim. With respect to the knowledge requirement, the evidence established that the defendants
had ample actual notice of directly infringing activity on dozens of web sites hosted on the
defendants’ servers in the form of many notice letters from the plaintiff identifying specific web
sites that were selling counterfeit goods infringing the plaintiff’s copyrights.^2057 With respect to
the material contribution requirement, the defendants provided and operated the servers through
which the web sites offering the counterfeit goods were hosted, and continued to do so despite
receiving notices from the plaintiff of particular web sites engaged in infringing conduct. One of
the defendants testified that he rarely used several of the tools at his disposal to punish or deter
the operation of the counterfeiting web sites. Thus, there was sufficient evidence to support a
finding by the jury of material contribution.^2058
Accordingly, the court issued a permanent injunction against ‘knowingly” hosting
infringing web sites in the United States. The order specifically spelled out that the defendants
would be deemed to be acting “knowingly” upon proof that (i) they had been served be email or
regular mail by the plaintiff with a notice of infringement of specific copyrights on an Internet
hosting or routing service operated by the defendants, and (ii) the notice contained screen shot(s)
depicting the infringing activity, and (iii) 72 hours after service of the notice the infringing
activity was still taking place. The order further stated that the defendants would not be deemed
to be acting “knowingly” upon proof that (i) the defendants condition their use of their Internet
hosting or routing services, and notify each subscriber and customer accordingly, that their use of
such services is subject to immediate termination upon receipt of a notice of infringement that
the subscriber or customer is infringing the copyright of Louis Vuitton, and (ii) the defendants
publish on their web site complete and accurate contact information for receiving notices of
infringement, and (iii) upon receipt of a notice the defendants mailed to the plaintiff an
acknowledgment of receipt, and (iv) the defendants assigned a tracking number to the notice, and
(v) within 24 hours of receipt of the notice the defendants sent to the subscribe or customer a
notice to immediately cease and desist from the activity that is the subject of the notice and
failure to do so would result in immediate terminate of services, and (vi) the defendants
investigated whether activity did or did not cease within the time period required by the notice
and upon verifying that it did not cease, the defendants immediately terminated services to the
infringing subscriber or customer.^2059
(^2056) Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., 2010 U.S. Dist. LEXIS 85266 at 1-2 (N.D. Cal. Mar.
19, 2010), aff’d in part & rev’d in part, 658 F.3d 936 (9th Cir. 2011).
(^2057) Id. at 17.
(^2058) Id. at 20.
(^2059) Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., 2010 U.S. Dist. LEXIS 34021 at *4-6 (N.D. Cal. Mar.
19, 2010).