the result that the Message-IDs were illegible, and Perfect 10 refused Giganews’ request to
resubmit the Message-IDs in legible format. The court found even more puzzling the fact that
Perfect 10 admitted it was aware of and had used software that allowed it to extract thousands of
Message-IDs for messages it believed to be infringing in about ten seconds. There was evidence
that using such software would require less than 15 minutes to extract Message-IDs for more
than 90% of the infringing Perfect 10 content that Perfect 10 was aware of on Giganews’ servers.
But Perfect 10 did not take that simple step to protect its copyrights. The court therefore
concluded that there was no evidence that Giganews had any knowledge, actual or constructive,
of any specific infringing content other than those messages for which Perfect 10 provided
legible Message-IDs. As to those messages, the evidence was undisputed that Giganews
promptly blocked access to the infringing messages. Accordingly, the court ruled that Giganews
was entitled to summary judgment in its favor on Perfect 10’s contributory infringement
claim.^2112
Finally, the court noted that, by this order and its order with respect to direct liability (see
the discussion in Section II.A.4(v) above), each of the three theories of copyright liability Perfect
10 alleged against Giganews and Livewire had been adjudicated in the defendants’ favor (either
by summary judgment or a motion to dismiss). Accordingly, the court entered final judgment in
favor of Giganews and Livewire as to all claims by Perfect 10 in the case.^2113
(o) Masck v. Sports IllustratedIn Masck v. Sports Illustrated,^2114 the plaintiff owned the copyright in an action play
photograph of football player Desmond Howard. Without the plaintiff’s permission, the
photograph was uploaded for sale by a third party on the marketplace at Amazon.com. The
plaintiff sued Amazon for contributory and vicarious liability and Amazon moved to dismiss the
claims. The court denied Amazon’s motion with respect to the claim of contributory liability,
finding that Amazon had knowledge of the infringing activity because the plaintiff had requested
Amazon to take down the infringing photograph. However, Amazon continued offer the
photograph for sale in its marketplace after the requested removal, and the court concluded that
such continued sale was a material contribution to infringement. The court rejected Amazon’s
reliance on the Sony case, finding the Sony rule to be applicable only to imputing culpable intent
from the characteristics or uses of a distributed product. Here, there was no need to impute
culpable intent because Amazon continued to offer the photo for sale on its website after
receiving notice that it was infringing.^2115
The court, however, granted Amazon’s motion to dismiss with respect to the plaintiff’s
vicarious liability claim. The court agreed with Amazon’s argument that it could not be expected
to examine every product posted by a third party and determine whether or not it is infringing.
(^2112) Id. at pp.12-14.
(^2113) Judgment in Favor of Defendants Giganews, Inc. and LiveWire Services, Inc., Perfect 10, Inc. v. Giganews,
Inc., No. CV 11-07098-AB (SHx), Dkt. No. 628 (C.D. Cal. Nov. 26, 2014).
(^2114) 2013 U.S. Dist. LEXIS 81677 (E.D. Mich. June 11, 2013).
(^2115) Id. at *2-3, 20-22.