Advanced Copyright Law on the Internet

(k) Arista Records v. Usenet.com

In Arista Records LLC. V. Usenet.com, Inc.,^2066 the defendants operated a Napster-like
Usenet service that advertised to and targeted users who wanted to download music files. Unlike
peer-to-peer filing sharing networks, the files were stored on “spool” news servers operated by
the defendants.^2067 The court granted the plaintiff record companies’ motion for summary
judgment on their claim for contributory infringement. With respect to the knowledge prong of
contributory liability, unlike the Ninth Circuit in the Napster cases, the court ruled that
knowledge of specific infringements on the defendants’ service was not required to support a
finding of contributory infringement. Rather, it was sufficient that the record established the
defendants’ employees were clearly aware that their service was used primarily to obtain
copyrighted material, users of the service told defendants’ technical support employees that they
were engaged in copyrighted infringement, and the defendants had targeted the service to former
users of Napster and Kazaa.^2068

The material contribution prong was satisfied because the defendants’ servers were the
sole instrumentality of their subscribers’ infringement. The servers physically stored the content
that subscribers requested for download, and the defendants had created designated servers for
newsgroups containing MP3 or music binary files so as to maximize the average retention time
of those files as compared to other Usenet groups with non-music content. The court rejected the
defendants’ assertion that they could not be contributorily liable under the Supreme Court’s Sony
doctrine because their product had substantial noninfringing uses. The court distinguished Sony
on the ground that Sony’s last meaningful contact with the product or the purchaser was at the
point of purchase, after which it had no ongoing relationship with the product or its end user. By
contrast, the defendants maintained an ongoing relationship with their infringing users in the
course of offering their service, thereby rendering the noninfringing uses immaterial to insulate
the defendants from liability. Accordingly, the court granted the plaintiffs’ motion for summary
judgment on their contributory copyright infringement claim.^2069

(l) Hermeris v. Brandenburg

In Hermeris v. Brandenburg,^2070 the court issued a ruling that may impliedly broaden an
online service provider’s duty to police its site for other similar infringing material, at least in a
situation where no DMCA safe harbor has been asserted and the material is all owned by related
defendants. The plaintiff operated an online document preparation web site. The plaintiff sought
to hold the defendant OSP contributorily and vicariously liable for hosting three web sites, all of
which were owned by apparently related defendants, that were allegedly infringing of the
plaintiff’s copyrights in its own web site. The plaintiff gave the OSP direct notice that the first

(^2066) 633 F. Supp. 2d 124 (S.D.N.Y. 2009).
(^2067) Id. at 130-31.
(^2068) Id. at 154-55.
(^2069) Id. at 155-56.
(^2070) 2011 U.S. Dist. LEXIS 6682 (D. Kan. Jan. 23, 2011).