engaged in a volitional act directly causing infringement. Accordingly, the court dismissed the
plaintiff’s claims for direct copyright infringement with leave to amend.^246
The plaintiffs amended the complaint and the defendants again moved to dismiss. A
different judge (Judge Collins) reaffirmed Judge Matz’s conclusion that the allegations did not
support a claim for direct infringement against Giganews as a matter of law – because they
mostly amounted to saying that Giganews programmed its servers to automatically copy,
distribute, and display content uploaded by USENET users and/or at a user’s request, which did
not amount to a volitional act^247 – except that Judge Collins permitted Perfect 10’s claim for
direct infringement against Giganews to proceed solely on the newly alleged theory that
Giganews “plac[ed] copies of copyrighted material from various internet locations onto its own
servers, and not at the request of customers ...”^248 The amended complaint further alleged that,
in view of how comprehensive, organized, and laborious the uploading of the plaintiff’s images
had been, and in view of the financial benefit that Giganews reaped from the materials accessible
to users through its server, it could be inferred that Giganews itself, through employees,
uploaded some of the infringing materials. The court found this possibility to be rendered more
plausible by the example of Megaupload, which the Dept. of Justice had recently found to have
itself, and not at the request of users, uploaded massive quantities of copyrighted works to its
own servers. Accordingly, the court concluded that the allegations that Giganews itself had
uploaded the plaintiff’s copyrighted materials were sufficiently plausible to survive a motion to
dismiss.^249
Judge Collins refused, however, to dismiss the claims of direct infringement against
defendant Livewire, noting that, unlike Giganews, the material that Livewire made available to
users was not posted on Livewire’s websites or servers by users. Rather, Livewire contracted
with Giganews to obtain that content. However, because Livewire sold copies of that material to
its customers, it had engaged in volitional conduct that could give rise to direct liability.^250
After discovery, the defendants moved for partial summary judgment with respect to
direct copyright liability. On Nov. 14, 2014, in a civil minute order, a third judge (Judge Birotte)
granted the defendants’ motion.^251 The court first turned to the question of whether there is a
volitional requirement for direct liability. The court noted that the Ninth Circuit had not passed
(^246) Id. at 22-23, 26.
(^247) Perfect 10, Inc. v. Giganews, Inc., 2013 U.S. Dist. LEXIS 98997 at 7-8 (C.D. Cal. July 10, 2013).
(^248) Id. at 7.
(^249) Id. at 7-8. The court also dismissed Perfect 10’s allegation that Giganews directly infringed its display rights
through the Mimo newsreader. The court noted that Mimo was just a reader, a piece of software that allowed a
user to view an image. To the extent Mimo was used to view infringing images, that was done by the user.
Furthermore, a user could use a number of other readers to view infringing content. That users might use
Giganews’ reader to display infringing images did not constitute volitional conduct by Giganews. Id. at 6.
(^250) Id. at 9.
(^251) Order Granting Defendant’s Motion for Partial Summary Judgment on the Issue of Direct Copyright
Infringement, Perfect 10, Inc. v. Giganews, Inc., No. CV 11-07098-AB (SHx), Dkt. No. 619 (C.D. Cal. Nov.
14, 2014).