liability for contributory infringement on the part of a person who causes an infringement by
authorizing it. Under the reasoning of the Subafilms decision, even if loading material onto a
server encourages (or authorizes) copying through downloading, that authorization does not
suffice for direct liability.^1587
However, as discussed in greater detail in Sections II.A.4, II.C, and II.D above, the Frena,
Webbworld, Sanfilippo and Hardenburgh cases seem to go further in their willingness to impose
direct liability on a BBS operator, at least where an actor such as a BBS operator or website
operator has some form of direct involvement in the anticipated acts that lead to infringement or
in the infringing acts themselves (such as resale of the infringing material). Such acts of direct
involvement in the infringement process may be sufficient for a finding of enough volitional
activity to impose direct liability. As noted below, however, legislation limiting the liability of
OSPs might negate or limit the holdings of these cases.
(a) Louis Vuitton v. Akanoc SolutionsIn Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc.,^1588 the defendants operated
hosting services for a number of web sites overseas from which counterfeit Louis Vuitton
merchandise could be purchased. The plaintiff brought claims for direct and contributory
infringement of its copyrights. A jury found the defendants liable for willful contributory
infringement and awarded statutory damages, and found that the defendants were not entitled to
the safe harbors of the DMCA. After the verdict, the defendants filed a motion for JMOL with
respect to the claims.^1589 The defendants argued that they could not be liable for contributory
copyright infringement because, among other things, the acts of direct infringement – the
reproduction of counterfeit merchandise and the storage of digital images of that merchandise on
the servers of their web site – occurred extraterritorially in China and the digital images could
not be “copies” of the copyrighted merchandise.^1590
The court rejected these arguments. With respect to territoriality, the court noted that
unauthorized copying and public display of a copyrighted work within the United States triggers
application of U.S. copyright law, and under Section 602, unauthorized importation into the
United States of copies acquired extraterritorially is prohibited, acts which the defendants clearly
had done.^1591 Concerning the public display right, the court noted that the Ninth Circuit had
adopted in Perfect 10 v. Amazon.com^1592 the “server test,” under which a computer owner
storing an electronic image as electronic information and serving that information directly to the
user is displaying the information in violation of the copyright holder’s exclusive display right.
(^1587) R. Nimmer, Information Law ¶ 4.10, at 4-39 (2001).
(^1588) 2010 U.S. Dist. LEXIS 85266 (N.D. Cal. Mar. 19, 2010), aff’d in part & rev’d in part on other grounds, 658
F.3d 936 (9th Cir. 2011).
(^1589) Id. at 1-2.
(^1590) Id. at 5-6.
(^1591) Id. at *7-9.
(^1592) 508 F.3d 1146 (9th Cir. 2007).