of the three web sites was infringing, then sought to hold the OSP secondarily liable for failure to
take down the second and third web sites, which the plaintiff alleged were substantially similar to
the first web site. The OSP filed a motion to dismiss.^2071
The court denied the motion with respect to contributory liability because, assuming the
facts pled in the complaint were true, the OSP had constructive knowledge of infringement by
virtue of the fact that it had received actual knowledge of infringement by the first web site and
the fact that the second and third web sites were substantially similar to the first web site.^2072
“Given these factual allegations and viewing the facts in the light most favorable to plaintiff, it is
reasonable to infer that [the OSP] should have known that the Second and Third Websites
directly infringed upon plaintiff’s copyright.”^2073 Although the court does not say, its ruling that
the actual notice of infringement by the first web site gave the OSP constructive knowledge of
infringement by the second and third web sites may have been influenced by the fact that all
three web sites were owned by the same defendants and were all substantially similar to each
other. If so, then the court’s ruling may not necessarily imply a more general holding that actual
notice of one infringement gives a defendant OSP constructive notice as to all other substantially
similar material on its site for purposes of contributory liability. In any event, having found
sufficient knowledge for purposes of contributory liability, the court found an adequate
allegation of material contribution to infringement in the form of failure to purge the web sites
from the OSP’s system.^2074
The court also ruled that the plaintiff had adequately pled a claim for vicarious
infringement because it had pled that the OSP hosted the infringing web sites, and the court
found it reasonable to assume that, as the host, the OSP had the right and ability to stop or
limited the defendants from displaying or distributing the allegedly infringing materials. The
court rejected the OSP’s argument that it did not have control over the second and third web sites
because it did not have actual knowledge of them. The court found it sufficient for purposes of
the control prong that the plaintiff had pled the OSP had constructive knowledge of the second
and third web sites.^2075 This ruling seems to imply that, at least in an Internet context (as
opposed to a dance hall, for example), some form of knowledge of infringing activity is required
before a defendant can be said to have control over it.
The court’s opinion makes no mention of the OSP asserting any safe harbor defense
under Section 512.
(^2071) Id. at 4-6.
(^2072) Id. at 10.
(^2073) Id.
(^2074) Id. at 11.
(^2075) Id. at 12-13.