exclusive rights of copyright.”^2049 Here, the WoW players did not commit copyright
infringement by using Glider in violation of the TOU. MDY was thus not liable for secondary
copyright infringement, because there was no direct infringement on the part of the players.^2050
(j) Louis Vuitton v. Akanoc Solutions, Inc.In Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc.,^2051 the defendants provided
OSP services that hosted websites through which the plaintiff alleged goods were being sold that
infringed its trademarks and copyrights. The plaintiff sought to hold the defendants
contributorily and vicariously liable for hosting such websites and the defendants moved for
summary judgment. The court denied the motion as to contributory infringement, but granted it
as to vicarious infringement.^2052 With respect to contributory infringement, the court found
issues of material fact concerning whether direct infringements were taking place on websites
hosted by the defendants, citing internal emails in which defendants discussed attempts to take
down websites selling counterfeit Louis Vuitton products.^2053 The court also found issues of
material fact with respect to the defendants’ knowledge of infringing activity, rejecting the
defendants’ argument that they did not have such knowledge because they did not log on to sites
to investigate complaints of infringing activity, but rather simply took such sites down. The
court found this testimony merely served to highlight that there were issues of material fact
concerning actual knowledge on the part of defendants, and in any event, the defendants had not
submitted any testimony with respect to whether they should have known of infringing activity
in view of numerous letters from the plaintiff alleging such activity.^2054
Finally, citing the Ninth Circuit’s decision in Perfect 10 v. Amazon allowing a finding of
material contribution where an OSP fails to take “simple measures” to limit infringement on its
site, the court found material issues of fact with respect to whether the defendants could have
taken such simple measures based on evidence submitted by the plaintiff that the defendants had
the ability to remove single websites by disabling IP addresses without taking down an entire
server. The court noted that the defendants had not submitted any evidence indicating that
removing a web site in this fashion would not be a “simple measure” by which they could purge
infringing activity using their services.^2055
(^2049) Id. at 21. The court noted, however, special treatment in the case of failure to pay: “A licensee arguably may
commit copyright infringement by continuing to use the licensed work while failing to make required payments,
even though a failure to make payments otherwise lacks a nexus to the licensor’s exclusive statutory rights. We
view payment as sui generis, however, because of the distinct nexus between payment and all commercial
copyright licenses, not just those concerning software.” Id. at 22 n.4.
(^2050) Id. at *21-22.
(^2051) 591 F. Supp. 2d 1098 (N.D. Cal. 2008).
(^2052) Id. at 1113. The court’s rulings with respect to vicarious infringement are set forth in Section III.C.3(i) below.
(^2053) Id. at 1106.
(^2054) Id. at 1107-08.
(^2055) Id. at 1108-09.