Ellison v. Robertson
Ellison v. Robertson, 189 F. Supp. 2d 1051 (C.D. Cal. 2002)
After a user uploaded scanned copies of an author's stories onto AOL's USENET, Ellison sued several defendants, including AOL, claiming direct, vicarious, and contributory copyright infringement. Id. at 1055. On a motion for summary judgment, the court rejected the direct infringement claim against AOL for copyrighted material posted on Usenet because AOL was only a “passive provider of Usenet access to AOL users,” citing RTC v. Netcom. Id. at 1056. Addressing vicarious infringement, the court held that AOL's ability to block user access to the USENET group and delete materials from the USENET group did constitute "the right and ability to control the infringing activity." Id. at 1061-62. The court followed the reasoning of Hendrickson v. eBay and held that since the DMCA required service providers to remove materials in order to qualify for immunity, vicarious liability had to require something more. Id. The court also held that AOL did not receive direct financial benefit from the infringing copies because access to that particular USENET group was only a miniscule draw for AOL users. Id. at 1063. However, on the claim of contributory infringement, the court found that a reasonable trier of fact could conclude that AOL had reason to know the infringing works were stored on their servers, and could conclude that AOL materially contributed to infringement by storing infringing copies and providing access to those copies. Id. at 1058-9. Nevertheless, the court granted summary judgement because it found that AOL’s storage of infringing material on its Usenet servers for fourteen days in order to provide Usenet access to its users qualifies the material as “transitory digital network communications” under Section 512(a) of the DMCA. Id. at 1070.
Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004)
The Ninth Circuit affirmed the district court's grants of summary judgment on the vicarious infringement claim. Id. at 1079. However, while upholding the District Court's ruling that triable issues of fact exists with regard to the contributory claim, the appellate court overruled the grant of summary judgment based on the DMCA Section 512(a) safe harbor limitations. Id. at 1080. The circuit court held there was a genuine issue of material fact as to whether AOL "reasonably implemented" a policy against repeat infringers, because the record suggests they did not have an adequate notification system in place, and remanded for trial. Id. AOL had changed its email address to which infringement notifications were supposed to be sent, and failed to forward messages sent to the old address to the new account. Id.