Advanced Copyright Law on the Internet

websites. Taken together, Perfect 10 has adequately alleged Megaupload has

engaged in volitional conduct sufficient to hold it liable for direct infringement.^194

The court also concluded that claims of contributory infringement were adequately pled.
Knowledge of infringement had been adequately pled because, in addition to takedown notices
(which the court noted doubt as to whether takedown notices automatically imply knowledge),
many of the allegations giving rise to direct infringement also gave rise to knowledge. The
plaintiff had also adequately pled a material contribution to infringement in that Megaupload
encouraged, and in some cases, paid its users to upload vast amounts of popular media through
its rewards programs, disseminated URLs that provided access to such media, and provided
payouts to affiliates who catalogued the URLs for all available media.^195

The court concluded, however, that the plaintiff had not adequately pled claims of
vicarious liability, because it did not allege facts suggesting that Megaupload had the right and
ability to supervise infringing conduct of its third party users. Accordingly, the court dismissed
the claim for vicarious liability without prejudice.^196

(t) Wolk v. Kodak Imaging Network

This case, which refused to find direct liability on the part of Kodak Imaging Network for
lack of volitional conduct, is discussed in Section III.C.6(b)(1)(iii).q below.

(u) Fox Broadcasting v. Dish Network

The First Preliminary Injunction Ruling

Fox sought a preliminary injunction against Dish Network, which had a contract with Fox
granting it the right to retransmit Fox broadcast material to its subscribers, for offering a high
definition digital video recorder called the “Hopper” and two associated services called
“PrimeTime Anywhere” (PTAT) and “AutoHop.” Because the Hopper was designed to service
multiple televisions, it had three tuners and a two-terabyte hard drive, which allowed Hopper
users to watch or record on three different television stations at once. The Hopper had the
additional unique capability of streaming all four of the major television networks on a single
satellite transponder, which allowed a user to watch or record all four network broadcasts while
leaving the other two tuners available for recording non-network programs or watching them on
other television sets equipped with additional set top boxes. The PTAT feature allowed
subscribers to set a single timer on the Hopper to record all primetime programming on any of
the four major broadcast networks each night of the week. Dish determined the start and end
time of the primetime block each night. In order to use PTAT, the user had to specifically enable
it from the main menu. Once enabled, a screen appeared allowing the user to choose to disable
recordings of certain networks on certain days of the week. If the user did not select otherwise,

(^194) Id. at 11-12 (citations to the complaint omitted).
(^195) Id. at 16-17.
(^196) Id. at *19.