The court held that the plaintiff’s complaint, which alleged merely that Amazon had the right and
ability to supervise the content of its web site, did not meet the pleading requirement as there
were no factual allegations from which it could be determined that Amazon had the ability to
supervise the infringing conduct. The plaintiff was required to put forth factual allegations that
demonstrated Amazon could plausibly verify the copyright status of each and every piece of
merchandise it listed from third party sellers. Failure to do so required dismissal of the claim.^2116
(p) UMG Recording v. Escape Media(For a discussion of contributory liability issues in this case, see Section III.C.1(c)
above.)
(q) Fox Broadcasting v. Dish Network(For a discussion of the court’s holding that Dish was not liable for contributory
infringement by virtue of offering its Prime Time Anytime (PTAT) and Hopper Transfers
services that enabled its subscribes to time shift and place shift Fox programming onto mobile
devices, because such time shifting and place shifting was a fair use, see Section II.A.4(u)
above.)
(r) SummaryAn OSP, BBS operator or other operator of an online service can be liable for
contributory infringement where the operator has sufficient knowledge of infringing activity.
The level of knowledge required is not consistent among the cases and is confusingly explicated
in some of them, particularly the Ninth Circuit’s rulings in the Napster cases. The Ellison and
Perfect 10 v. Cybernet Ventures cases seem to hold that constructive knowledge, or reason to
know of infringement, may be sufficient for contributory liability. However, the Ninth Circuit’s
Napster cases seem to adopt a standard of “reasonable knowledge,” as Judge Patel’s extensive
analysis of those cases concludes in her opinion in the Hummer Winblad case, discussed in
Section III.C.2(c)(7) above. As Judge Patel concluded, the precise scope of this standard of
“reasonable knowledge” is not clear, but it seems to be narrower than the “reason to know”
standard of constructive knowledge used in the Ellison and Perfect 10 v. Cybernet Ventures
cases.
To add to the confusion, under the Ninth Circuit’s Grokster decision, where contributory
liability is alleged based on the distribution of a product or service used to infringe, the level of
knowledge required for contributory liability varies with whether the product or service of the
defendant has substantial noninfringing uses. If the product at issue is not capable of substantial
or commercially significant noninfringing uses, then the copyright owner need only show that
the defendant had constructive knowledge of the infringement. On the other hand, if the product
at issue is capable of substantial or commercially significant noninfringing uses, then the
copyright owner must demonstrate that the defendant had reasonable knowledge of specific
infringing files and failed to act on that knowledge to prevent infringement. The Ninth Circuit’s
(^2116) Id. at *18-20.