Advanced Copyright Law on the Internet

infringed its trademarks and copyrights. The plaintiff sought to hold the defendants
contributorily and vicariously liable for hosting such websites and the defendants moved for
summary judgment. The court denied the motion as to contributory infringement, but granted it
as to vicarious infringement.^2164 With respect to vicarious liability, the plaintiff argued that the
ability to infringe without strict policing by the defendants acted as a draw to the site, in
conjunction with the defendants’ Chinese language skills and competitive technology. The court
rejected this argument, noting that the plaintiff had provided no evidence that any of the
defendants’ customers used their services because of the ability to infringe.^2165 The court also
found that the plaintiff had not established a showing of direct financial benefit from infringing
activity. “Plaintiff does not offer any evidence showing that Defendants made more money
when they allowed infringement to continue or less money when they did not. Nor does Plaintiff
offer any evidence showing that customers sought or abandoned Defendants’ services based on
their ability to infringe. Furthermore, Plaintiff concedes that Defendants have ‘unplugged’
infringers in the past. By doing so, Plaintiff undermines its own contention that Defendants turn
a blind eye to the infringing activity occurring on their servers.”^2166

(j) Live Face on Web v. Howard Stern Productions

In Live Face on Web, LLC v. Howard Stern Productions, Inc.,^2167 the plaintiff alleged
that the defendant had infringed its copyright in proprietary software that allowed a company to
display a “live” salesperson or spokesperson superimposed on the company’s web site. The
plaintiff’s allegations that the unauthorized presentations on the defendant’s web site were
designed to and did draw and prolong visitors’ attention to the web site and to other Howard
Stern media promoted on the web site, that the presentations increased the amount of time users
would spend on the web site, and that the presentations enhanced visitors’ online experience,
thus reinforcing and advancing the brand and image of the Howard Stern Show and the
defendant’s products and services, were sufficient allegations of direct financial interest to avoid
a motion to dismiss the plaintiff’s claim for vicarious liability.^2168

(k) Arista Records v. Usenet.com

In Arista Records LLC. V. Usenet.com, Inc.,^2169 the court applied both prongs of the
vicarious liability doctrine in a rather broad fashion, in a factual context that was admittedly ripe
for imposing liability.. In that case, 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

(^2164) Id. at 1113. The court’s rulings with respect to contributory infringement are set forth in Section III.C.2(j)
above.
(^2165) Id. at 1109-10.
(^2166) Id. at 1110-11 (citations omitted). For subsequent proceedings in this case, see Sections III.C.1(a) and III.C.2(j)
above.
(^2167) 2009 U.S. Dist. LEXIS 21373 (E.D. Pa. 2009).
(^2168) Id. at *11-12.
(^2169) 633 F. Supp. 2d 124 (S.D.N.Y. 2009).