contribution prong, the court noted that MP3Board styled itself as a “passive” tool. The court
concluded, however, that there was sufficient evidence from which a factfinder could determine
that MP3Board materially contributed to the infringement by virtue of its search engine, the
site’s solicitation of third parties to post links to sites containing audio files, the posting of a link
to a third party named Freedrive where users could store audio files online, the posting of a
tutorial on how to locate and download audio files via MP3Board using one of the record
companies’ copyrighted recordings as an example, and the searching by MP3Board personnel for
links to requested songs in response to user requests through the MP3Board message boards.^3080
Concerning knowledge, the court found material issues of fact with respect to whether
MP3Board had constructive knowledge of infringement or whether MP3Board’s activities were
covered by the Sony doctrine and whether the site was capable of commercially significant
noninfringing uses. The record companies pointed to a category of links on the site titled “Legal
MP3s” as evidence that MP3Board recognized that the other categories contained MP3s which
were not legal. In response, MP3Board noted that a third party MP3 supplier had specifically
requested the title “Legal MP3s” to describe the category, which contained exclusively content
from that third party. MP3Board also contended that there was no evidence it monitored the
posting of links, and stated that it did not investigate the links.^3081
The court found stronger evidence of actual knowledge of infringement. The court noted
that the RIAA letters of Oct. 27, 1999 and Apr. 18, 2000 to MP3Board’s ISP, which were
forwarded on to MP3Board, were insufficient to constitute notice under DMCA Section
512(d)(3). “By solely listing artists’ names, and neglecting to specify any infringing links or
even particular songs, the letter(s) did not include ‘identification of the reference or link, to
material or activity claimed to be infringing.”^3082 Accordingly, MP3Board’s failure to delete any
links in response to those letters could not give rise to any liability.^3083 However, the letter of
May 25, 2000 complied with DMCA notification requirements because it not only named
particular artists along with specified songs, but was accompanied by printouts of screen shots of
MP3Board’s web site, on which the RIASA highlighted and placed an asterisk next to 662 links
which the RIAA believed to infringe upon the record companies’ copyrights (although no URL
addresses were provided by the RIAA).^3084 Despite the adequacy of notice via the May 25, 2000
letter, the court nevertheless held that issues of material fact existed regarding MP3Board’s
knowledge of infringing activity.^3085
With respect to vicarious liability, the court similarly found that issues of material fact
concerning MP3Board’s right and ability to control infringing activity, and whether it had a
direct financial interest in the activity, precluded summary judgment. It also found material
(^3080) Id. at 17-18.
(^3081) Id. at 21-23.
(^3082) Id. at 26 (quoting Section 512(d)(3)).
(^3083) Id. at 27.
(^3084) Id. at 28-29.
(^3085) Id. at *30.