would depend upon the level of knowledge it possessed and the specificity of that knowledge.
The court further held that, to prove its claim for contributory infringement, the plaintiff would
have to establish that the notice it gave to the OSP comprised at least constructive knowledge of
specific infringing activity which the OSP materially contributed to or induced by its alleged
failure to halt the activity. There remained too many material factual disputes for the court to
decide on summary judgment either that such a level of knowledge did or did not exist or that the
OSP’s actions in trying to stop the infringement were or were not insufficient to the point of
comprising inducement as a matter of law.
(e) Ellison v. RobertsonIn Ellison v. Robertson,^2009 discussed in detail in Section III.C.6(b)(1)(i)b. below,
the district court addressed the “reason to know” prong of the knowledge requirement of
contributory liability. In that case an individual named Robertson scanned several fictional
works written by the plaintiff and posted them onto the Usenet group “alt.binaries.e-book,” a
group that was used primarily to exchange pirated and unauthorized digital copies of text
material, principally works of fiction by famous authors. AOL, acting as a Usenet peer, hosted
the infringing materials on its Usenet server for a period of fourteen days. The plaintiff sought to
hold AOL liable for direct, vicarious and contributory copyright infringement.^2010
With respect to contributory infringement, the court found that AOL did not have actual
knowledge of the infringement until the lawsuit was filed. Although the plaintiff had attempted
to notify AOL of the presence of the infringing works via email to AOL’s designated copyright
agent as listed in the Copyright Office’s records, AOL never received the email because AOL
had changed its contact email address from “[email protected]” to “[email protected]” in
Fall 1999, but waited until April 2000 to notify the Copyright Office of this change. The district
court held that, in view of AOL’s failure to explain why it delayed in notifying the Copyright
Office of its email address change, as well as why it did not make provision for forwarding to the
new address emails sent to the old address, a reasonable trier of fact could find that AOL had
reason to know that infringing copies of the plaintiff’s works were stored on its Usenet
servers.^2011 The Ninth Circuit affirmed this ruling on appeal.^2012
(^2009) 189 F. Supp. 2d 1051 (C.D. Cal. 2002).
(^2010) Id. at 1053-54.
(^2011) Id. at 1057-58. The court also noted that a trier of fact might conclude that AOL had reason to know of
infringement on its system from the fact that another AOL user had called AOL to report a number of infringing
books posted on Usenet. The user spoke only to a low-level customer service representative, who advised him
to send an email setting forth the details of his complaint. The court stated, “a reasonable trier of fact might
conclude that AOL should have transferred Miller to speak with an employee with knowledge of AOL’s
copyright infringement policies instead of directing him to an email address.” Id. at 1058.
(^2012) Ellison v. Robertson, 357 F.3d 1072, 1077 (9th Cir. 2004) (“Because there is evidence indicating that AOL
changed its e-mail address in an unreasonable manner and that AOL should have been on notice of infringing
activity we conclude that a reasonable trier of fact could find that AOL had reason to know of potentially
infringing activity occurring within its USENET network.”).