With respect to the material contribution prong of contributory infringement, AOL
argued that as a matter of law, the mere provision of Usenet access was too attenuated from the
infringing activity to constitute a material contribution, citing for support by analogy the
provisions of Section 512(m) of the DMCA that an OSP need not monitor its system for
infringing activity to qualify for the DMCA safe harbors. The district court rejected this
argument, citing the Netcom court’s holding that providing a service that allows for the
automatic distribution of all Usenet postings can constitute a material contribution when the OSP
knows or should know of infringing activity on its system and yet continues to aid in the
distribution of the infringing material. Accordingly, the district court ruled that the plaintiff had
demonstrated triable issues of fact on contributory infringement by AOL.^2013 The Ninth Circuit
also affirmed this ruling on appeal.^2014
(f) Perfect 10 v. Cybernet VenturesIn Perfect 10, Inc. v. Cybernet Ventures, Inc.,^2015 the defendant Cybernet was the
operator of an “age verification service” that enrolled subscribers, after verifying their age as an
adult, to a service that would enable them to gain access for a single monthly fee to a large
number of member sites displaying pornographic pictures. All fees paid by subscribers went
directly to Cybernet, which on a semi-monthly basis then paid each individual member site a
commission based on the site where the subscriber originally signed up for his or her
membership in Cybernet’s service.^2016 Cybernet exercised some control over the content of each
of its member sites, requiring that each site contain unique and adequate content, which generally
meant at least 30 pictures of sufficient quality to provide value to Cybernet’s customers.
Cybernet also imposed a zero tolerance child pornography policy on its member sites.^2017 The
court found that Cybernet actively reviewed and directed its affiliated webmasters on the
appearance and content of their sites.^2018
The plaintiff, Perfect 10, was the holder of copyright in various photographs of nude
women. Perfect 10 claimed to have found more than 10,000 copies of its photographs on
approximately 900 websites affiliated with Cybernet.^2019 Perfect 10 sought to hold Cybernet
liable for the unauthorized presence of its photographs on Cybernet’s member sites.
On a motion for a preliminary injunction, the court ruled that Perfect 10 had established a
strong likelihood of success on its claim of contributory copyright infringement. The court
found that Cybernet had knowledge of the infringements because a member for the Association
for the Protection of Internet Copyright had contacted Cybernet with approximately 2,000 emails
(^2013) Ellison v. Robertson, 189 F. Supp. 2d 1051, 1058-60 (C.D. Cal. 2002).
(^2014) Ellison v. Robertson, 357 F.3d 1072, 1078 (9th Cir. 2004).
(^2015) 213 F. Supp. 2d 1146 (C.D. Cal. 2002).
(^2016) Id. at 1159.
(^2017) Id. at 1160-61.
(^2018) Id. at 1164.
(^2019) Id. at 1162.