financial benefit because the presence of infringing material on the Napster system acted as a
draw for users.
The Ninth Circuit’s holdings in both Fonovisa and Napster suggest a standard that does
not require direct financial benefit from the infringing activity itself, but rather that the infringing
activity contributes to an overall commercial design and benefit for the operator.^2126
In one decision handed down after both the Netcom and Fonovisa decisions, Marobie-FL,
Inc. v. National Association of Fire Equipment Distributors,^2127 the court, citing the Netcom
case, refused to hold vicariously liable an OSP supplying Internet service to a website that
contained infringing material because the infringements that occurred through the website did
not directly financially benefit the OSP. The website owner paid the OSP a flat quarterly
subscription fee that did not change based upon how many people visited the website or what
was accessed on such site.^2128
(b) The Napster Cases(For a discussion of vicarious liability in the Napster cases, see Section III.C.2.(c)(1)
above.)
(c) Ellison v. Robertson(For a discussion of vicarious liability in the case of Ellison v. Robertson, see Section
III.C.6(b)(1)(i) below.)
(d) Perfect 10 v. Cybernet VenturesThe facts of the case of Perfect 10, Inc. v. Cybernet Ventures, Inc.^2129 are set forth in
Section III.C.2(f) above. In that case, the court found, on a motion for a preliminary injunction,
that the plaintiff had established a strong likelihood of success on its claim of vicarious liability.
The court ruled that the defendant Cybernet had a direct financial interest in the infringing
activities of its member sites because Cybernet benefited from such sites to the extent they acted
as a draw for new subscribers to Cybernet’s service. The court further noted that the relationship
between Cybernet and its member sites was so close that it appeared to Cybernet’s subscribers as
if the Cybernet service constituted a single brand. In addition, subscribers paid all the money for
their subscription fees directly to Cybernet, which then apportioned it to the member sites as
commissions.^2130
(^2126) R. Nimmer, Information Law ¶ 4.13[2], at 4-49 (2001).
(^2127) 45 U.S.P.Q.2d 1236 (N.D. Ill. 1997).
(^2128) Id. at 1245.
(^2129) 213 F. Supp. 2d 1146 (C.D. Cal. 2002).
(^2130) Id. at 1171-72.