issues of fact concerning whether MP3Board qualified as a “service provider” for purposes of the
Section 512(d) safe harbor, thereby at least implicitly recognizing that the Section 512(d) safe
harbor could apply to vicarious liability. With respect to the issue of control, the court curiously
found issues of material fact, even though it stated, citing the Ninth Circuit’s Napster I decision,
that a defendant’s ability to block infringers’ access to a particular environment for any reason
constitutes proof of its right and ability to supervise and control the infringing activities. The
court further noted as evidence of control that MP3Board could delete links from its database
and thus prevent them from being displayed in response to user queries, and that it had in fact
removed offending links from the site and banned repeat offenders of its rules from posting any
additional links.^3086
With respect to the issue of financial benefit, the court again curiously found issues of
material fact, despite the fact that it cited only evidence from which direct financial benefit could
be inferred. Specifically, the court, against citing Napster I, noted that infringement which
increases a defendant’s user base or otherwise acts as a draw for customers constitutes a direct
financial interest. It also cited testimony from MP3Board’s principals that the revenue
MP3Board received from banner advertisements on the site was directly tied to the number of
users who were exposed to those ads.^3087 In view of the material issues of fact cited by the court,
it denied the plaintiffs’ motion for summary judgment.^3088
- Kelly v. Arriba Soft
One of the most important linking cases is that of Kelly v. Arriba Soft Corp.^3089 That
case and its significance are discussed in detail in Section II.C.2 above.
- Batesville Services, Inc. v. Funeral Depot, Inc.
In Batesville Services, Inc. v. Funeral Depot, Inc.,^3090 the plaintiff Batesville sold caskets
and was the owner of the copyrights in a number of advertising photographs used to market its
caskets. The defendant, although not an authorized dealer of Batesville, operated a web site that
sold caskets, including Batesville caskets. The defendant displayed some of Batesville’s casket
photographs on its web site. In response to a cease and desist letter, the defendant removed the
photographs from its web site, but approached the Veterans Society, an authorized Batesville
dealer, and reached an agreement that the defendant would pay the expenses of modifying the
Veterans Society web site so that digitized versions of images of Batesville caskets would be
(^3086) Id. at 33-34.
(^3087) Id. at 35-36.
(^3088) The court denied a counter-motion for summary judgment filed by MP3Board that its activities of identifying
links where information could be found were protected by the First Amendment. The court cited authority from
the Second Circuit that the fair use doctrine encompasses all claims under the First Amendment in the copyright
field, and noted that MP3Board had not asserted that its activities constituted fair use, nor could it succeed on
such an assertion under the applicable factors of the fair use doctrine. Id. at *37-40.
(^3089) No. 00-55521 (9th Cir. Feb. 6, 2002).
(^3090) 2004 Copyr. L. Dec. ¶ 28,901 (S.D. Ind. 2004).