carriers could establish a system that would give them the right and ability to supervise the
infringing activity. Luvdarts argued that this allegation was sufficient to survive a motion to
dismiss.^2182 The court rejected this argument, noting that “under contributory liability the
Carriers’ failure to implement a digital rights management system may be used as circumstantial
evidence of ‘the object of promoting’ infringement. See Grokster, 545 U.S. at 936-37. But
under vicarious liability, it cannot substitute for an allegation of a capacity to supervise.
Luvdarts’s failure to allege that the Carriers have at least something like a capacity to supervise
is fatal to a claim of vicarious liability. Even if the doctrine of vicarious liability imposed some
affirmative duty to acquire supervisory capacity, Luvdarts has failed to allege facts that plausibly
show that the Carriers could implement an effective system.”^2183
With respect to contributory liability, the court noted that Luvdarts had failed to allege
that the carriers had the requisite specific knowledge of infringement. The notices of
infringement that Luvdarts had sent to the defendants were insufficient to establish specific
knowledge because they were merely 150-page-long lists of titles, apparently just a transcription
of every title copyrighted by Luvdarts, stating that Luvdarts wanted “accountability” for the
unauthorized distribution of those titles. The notices did not identify which of the titles were
infringed, who infringed them, or when the infringement occurred and therefore did not satisfy
Section 512 of the DMCA, by which the notices purported to be governed.^2184
The court also rejected Luvdarts’ argument that the carriers were willfully blind to the
infringement that was occurring, because Luvdarts had not alleged that the carriers took active
steps to avoid acquiring infringing knowledge. The most it had alleged was that the carriers
proceeded with the development and operation of the MMS networks indifferent to the risk of
copyright infringement, which was insufficient to meet the standard of willful blindness.
Accordingly, the court ruled that the district court had properly dismissed Luvdarts’ complaint
with prejudice.^2185
(p) Flava Works v. GunterThe facts of this case are set forth in Section III.C.1(b) above. The court granted the
defendants’ motion to dismiss the plaintiff’s claim for vicarious liability. With respect to the
control requirement, the court noted that all the plaintiff had alleged as the basis that the
defendants had the right and ability to control the infringing activity was that it had ownership of
and operated the myVidster site. Mere ownership and control of the site was insufficient to
establish the right and ability to control infringing activity on the site. With respect to the
financial benefit requirement, the court noted that all the plaintiff needed to allege was that the
availability of infringing material on myVidster was a draw for customers. However, the
plaintiff had failed to do so. Although the complaint alleged that inexpensive storage space and
the ability to share videos attracted customers to myVidster, it did not allege that the presence of
(^2182) Id. at 1071.
(^2183) Id. at 1071-72.
(^2184) Id. at 1072-73.
(^2185) Id. at 1073.