With respect to Yeo, the complaint adequately alleged direct infringement of the
distribution right by alleging that Yeo published ChainRxn to a publicly accessible web site
where it was then distributed to members of the public. It was reasonable to infer that ChainRxn
was downloaded from the computer where it was hosted to the local cache memory of any
Facebook user who played the video game. The plaintiff had also adequately pled a violation of
the public performance right by Yeo because the video displays of Boomshine could be seen as
being publicly performed when users played Yeo’s allegedly infringing game.^2252
Given adequate allegations of direct infringement by Yeo, the court ruled that the
plaintiff had also adequately pled contributory infringement against Facebook. Noting that under
the Ninth Circuit’s decision in Perfect 10 v. Amazon, a computer system operator can be
contributorily liable if it has actual knowledge that specific infringing material is available using
its system and it could take simple measures to prevent further damage to the copyrighted works,
the court ruled that the plaintiff had adequately pled “simple measures” that Facebook could
have taken in the form of either disabling Yeo’s Facebook account or removing ChainRxn from
the Facebook Applications Directory.^2253
(b) Williams v. ScribdIn Williams v. Scribd, Inc.,^2254 the court rejected Scribd’s arguments why the plaintiff’s
amended complaint failed to state a claim for contributory and vicarious liability. The plaintiff
alleged that a Scribd member uploaded onto the Scribd web site hundreds of pages of his
copyrighted material. Noting that under the Ninth Circuit’s decision in Napster,^2255 in the online
context a plaintiff must allege and show actual knowledge on the part of a service provider for
contributory liability, the court found that the plaintiff had adequately pled actual knowledge on
the part of Scribd by pleading that he had notified Scribd of the infringement and asked that his
materials be removed from the web site. And the plaintiff had adequately pled a material
contribution to the infringement both by pleading the mere failure to remove and that the web
site provided the site and facilities for direct infringement.^2256
The court also rejected Scribd’s argument that the plaintiff could not state a claim for
vicarious copyright liability because he could not plausibly claim that Scribd benefited
financially from the alleged infringement. The court noted that financial benefit exists where the
availability of infringing materials acts as a draw for customers, and that the draw need not be
substantial. Scribd argued that it had too many works on the site for the copyrighted materials of
(^2252) Id. at 13-15. However, in a confusing aspect of the opinion, the court ruled that the plaintiff had not
adequately pled a direct violation of the public display right because the plaintiff’s copyright appears to be
limited to the source code rather than the audiovisual aspects of the Boomshine, and the source code had not
been publicly displayed. Id. at 13.
(^2253) Id. at 20-21.
(^2254) 2010 U.S. Dist. LEXIS 90496 (S.D. Cal. June 23, 2010).
(^2255) A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1021 (9th Cir. 2001).
(^2256) Scribd, 2010 U.S. Dist. LEXIS 90496 at 19-20.