In Ellison v. Robertson,^2276 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.^2277 AOL asserted
that the plaintiff could not establish the elements for common law liability and that it was
immune under the Section 512(a) and Section 512(c) safe harbors of the DMCA. The district
court, relying on the Netcom case, ruled that AOL could not be liable for direct copyright
infringement merely based on its passive role as a provider of Usenet services.^2278 The court’s
rulings with respect to contributory infringement are discussed in Section III.C.2(e) above.
With respect to vicarious liability, the plaintiff argued that, under the Ninth Circuit’s
Napster I decision, AOL’s ability to block infringers’ access to its Usenet servers was sufficient
to establish the right and ability to control infringing activity. The court rejected this argument,
noting the same Catch 22 under the Section 512(c) safe harbor this would set up that the court
noted in the Hendrickson v. eBay case: Because an OSP is required under Section 512(c)(1)(C)
to delete or block access to infringing material, if this ability to delete or block were sufficient to
establish the “right and ability to control” infringing activity, the OSP would thereby be
disqualified from the safe harbor under Section 512(c)(1)(B), at least if it received a financial
benefit directly attributable to the infringing activity.^2279 “The Court does not accept that
Congress would express [an intention that ISPs which receive a financial benefit directly
attributable to the infringing activity could not qualify for the Section 512(c) safe harbor under
any circumstance] by creating a confusing, self-contradictory catch-22 situation that pits
512(c)(1)(B) and 512(c)(1)(C) directly at odds with one another, particularly when there is a
much simpler explanation: the DMCA requires more than the mere ability to delete and block
access to infringing material after that material has been posted in order for the ISP to be said to
have ‘the right and ability to control such activity.’”^2280
The court further found that AOL’s right and ability to control the infringing behavior
was substantially less than that enjoyed by the OSP in the Netcom case, where the OSP was one
of two entities responsible for providing the direct infringer with access to the Internet. As a
result, by taking affirmative steps against the other entity, the OSP had the ability to target the
infringer himself and deny him access to the Internet. By contrast, AOL had no such ability to
go after the individual who had posted the infringing copies of the plaintiff’s works onto Usenet.
The court therefore concluded that AOL’s ability to delete or block access to the infringing
postings after they had found their way onto AOL’s Usenet servers was insufficient to constitute
(^2276) 189 F. Supp. 2d 1059 (C.D. Cal. 2002).
(^2277) Id. at 1053-54.
(^2278) Id. at 1056.
(^2279) Id. at 1060-61.
(^2280) Id. at 1061.