Ventura Content Ltd v. Motherless Inc Et Al, Docket No. 2_11-Cv-05912 (C.D. Cal. Jul 19, 2011), Court Docket

Case 2:11-cv-05912-SVW-FMO Document 90 Filed 11/20/12 Page 1 of 28 Page ID #:1371
1 Peter Afrasiabi, Esq. (Bar No. 193336)

John Tehranian, Esq. (Bar No. 211616)
2 Christopher W. Arledge (Bar No. 200767)
Imran F. Vakil (Bar No. 248859)
3 ONE LLP
4000 MacArthur Blvd.
4 West Tower, Suite 1100
Newport Beach, CA 92660
5 Telephone: (949) 502-2870
Facsimile: (949) 258-5081
6
Jessica M. Pena, Esq. (AZ Bar No. 024995)
7 Pro Hac Vice
2010 North Camino Serna
8 Tucson, AZ 85715
Telephone: (520) 290-0910, Ext. 1103
9 Facsimile: (520) 258-4045
10 Attorneys for Plaintiff,
Ventura Content Ltd.
11
12 UNITED STATES DISTRICT COURT
13 CENTRAL DISTRICT OF CALIFORNIA
14 VENTURA CONTENT, LTD., an Anguilla Case No. CV11-05912 SVW (FMOx)
corporation, Hon. Stephen V. Wilson
15
Plaintiff, PLAINTIFF VENTURA CONTENT,
16 LTD. ’S OPPOSITION TO
v. DEFENDANTS’ MOTION FOR
17 PARTIAL SUMMARY JUDGMENT
MOTHERLESS, INC., a New York
18 corporation; JOSHUA “JOSH” LANGE, an [RESPONSE TO DEFENDANTS’
individual; and DOES 1-20, inclusive, STATEMENT OF UNCONTROVERTED
19 FACTS AND CONCLUSIONS OF LAW;
Defendants. STATEMENT OF ADDITIONAL
20 GENUINE ISSUES OF MATERIAL
FACT AND CONCLUSIONS OF LAW;
21 EVIDENTIARY OBJECTIONS TO
DEPOSITION OF JOSHUA LANGE;
22 AND DECLARATIONS OF
CHRISTOPHER W. ARLEDGE,
23 FREDERICK LANE, AND ALLISON
VIVAS FILED CONCURRENTLY
24 HEREWITH]
25 DATE: December 10, 2012
TIME: 1:30 p.m.
26 PLACE: 312 N. Spring Street
Courtroom 6 (2nd Floor)
27
28
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

1 TABLE OF CONTENTS
2 I. INTRODUCTION ...................................................................................................... 1
3 II. FACTS ......................................................................................................................... 1
4 A. Motherless.com is a hybrid tube site full of infringing material ................. 1
5 B. Defendants affirmatively encourage the uploading of infringing material 3
6 C. Defendants exercise substantial editorial control ......................................... 5
7 D. The rules governing the motherless.com site are a sham ............................. 5
8 III. DEFENDANTS ARE LIABLE FOR INFRINGEMENT ....................................... 6
9 A. Direct Infringement.......................................................................................... 6
10 B. Defendants are vicariously liable .................................................................... 7
11 C. Defendants are contributorily liable............................................................... 8
12 IV. DEFENDANTS ARE NOT ENTITLED TO SAFE HARBOR REFUGE ............ 9
13 A. Defendants do not have a reasonable repeat-infringer policy ................... 11
14 B. Defendants are not entitled to the benefit of the 512(c) safe harbor ......... 15
15 1. There is a genuine issue as to actual knowledge .................................... 16
16 a. The correct “actual knowledge” reading.................................... 16
17 b. There are issues of fact as to Defendants’ knowledge. ............... 19
18 c. There are issues of facts as to Defendants’ red flag knowledge
under subsection (ii). ................................................................... 20
19
d. There are issues of fact issues as to Defendants’ expeditious
20 removal. ....................................................................................... 21
21 2. The infringement was not just "at the direction of a user". .................... 21
22 3. Defendants receive a financial benefit. .................................................. 22
23 V. AN INJUNCTION IS NOT MOOT ........................................................................ 23
24 VI. CONCLUSION ......................................................................................................... 24
25
26
27
28
i
1 TABLE OF AUTHORITIES
2 Cases
3 A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001) ..................................................... 17
4 Cable v. Agence France Presse, 728 F .Supp.2d 977 (N.D.Ill.2010) .................................... 2
5 Columbia Pictures Industries, Inc. v. Fung, 2009 WL 6355911 *15 (C.D. Cal. Dec. 21,
2009) ..................................................................................................................... 11, 19
6
Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004) ............................................. 1, 10, 11, 21
7
Flava Works v. Gunta, 689 F.3d 754 (7th Cir. 2012) ............................................................ 23
8
Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996)................................... 7, 8
9
Io Group, Inc. v. Veoh Networks Inc., 586 F. Supp. 2d 1132 (N.D. Cal. 2008)............... 2, 15
10
Lyons Patnership v. Morris, 243 F.3d 789 (4th Cir. 2001) ................................................... 23
11
Microsoft Corp. v. McGee, 490 F. Supp. 2d 874 (S.D. Ohio 2007) ..................................... 23
12
Polo Fashions v. Dick Bruhn, Inc., 793 F.2d 1132 (9th Cir. 1986)....................................... 23
13
Religious Technology Center v. Netcom On-Line Comm. Serv., Inc., 907 F. Supp. 1361
14 (N.D. Cal. 1995) ......................................................................................................... 10
15 Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984) ........................................ 17
16 UMG Recordings, Inc. v. Shelter Capital Partners LLC, 667 F.3d 1022 (9th Cir. 2011) .. 16,
17
17
Statutes
18
17 U.S.C. § 106 ................................................................................................................... 2, 6
19
17 U.S.C. § 111 ....................................................................................................................... 9
20
17 U.S.C. § 1202 ..................................................................................................................... 2
21
17 U.S.C. § 512 .............................................................................................................. passim
22
18 U.S.C. § 2257 ..................................................................................................................... 6
23
Other Authorities
24
H.R.Rep. No. 105–551(II) at 53 (1998) ................................................................................ 22
25
S. Rep. No. 105-25, 105th Cong., 2d Sess. 4 (1998) ............................................................ 10
26
Treatises
27
Nimmer on Copyright § 12B.01 ........................................................................................ 9, 10
28
ii
1 I. INTRODUCTION
2 Defendants argue that the DMCA worked a revolutionary change in the law of
3 copyright liability for the internet. Under their approach, people are free to become
4 professional, online infringers – encouraging the mass uploading of infringing material –
5 and even if virtually all of the material on the website is infringing, the website owner
6 avoids liability as long as he avoids knowledge about any specific infringement. Ignorance
7 is bliss, as well as profit, in Defendants’ world. That is their position.
8 It is not the law. “The DMCA did not simply rewrite copyright law for the on-line
9 world…. Claims against service providers … are generally evaluated just as they would be
10 in the non-online world.” Ellison v. Robertson, 357 F.3d 1072, 1077 (9th Cir. 2004)
11 (internal citation omitted). Defendants have built their entire business model on infringed
12 adult content. They encourage users to upload infringing content, they review it and
13 approve of its presence on the website, and they frequently shield repeat infringers to keep
14 the uploads coming and the advertising dollars flowing. Such conduct would lead to
15 infringement liability in the real world, and it does in the online world as well. Defendants
16 are liable for copyright infringement.
17
18 II. FACTS
19 A. Motherless.com is a hybrid tube site full of infringing material
20 Defendants' website, motherless.com, is a tube site, but it is more than just a
21 traditional tube site. A tube site, like the most-famous tube site, YouTube, is a site that
22 encourages people to upload material, which is then displayed over the internet. See
23 Plaintiff’s Statement of Additional Facts (“PAF”) 348. The motherless.com website is a
24 tube site because it accepts uploads from users, but unlike YouTube, Defendants shape the
25 content on the site. Unlike YouTube, the content is not entirely user-generated—the kind
26 of content that could potentially receive safe harbor protection under the DMCA. Instead,
27 much of the content on the website has been placed there not by users, but by Defendants
28 themselves. They uploaded over 1,000,000 pieces of content when they began their
1
1 website, and they continue to upload content. See PAF 349. Thus, motherless.com is a
2 combination site, and not a pure tube site. See PAF 350.
3 As Defendants have recognized, adult tube sites tend to be storehouses for “ripped
4 DVD porn.” See PAF 351. Adult tube sites attract visitors because they hold large
5 amounts of free pornography, and the only way to accumulate large volumes of popular
6 pornography is to get large volumes of professionally created pornography. See PAF 352.
7 There is no proven business model for a pornographic website that relies on truly amateur
8 content. See PAF 353. Few people are willing to make publicly available videos of their
9 own sex acts. Id. Just as most of the popular music or films comes from professional
10 producers -- people who know the marketplace and have the know-how and resources to
11 make what the market demands -- so, too, is most popular pornography created by
12 professional production companies. PAF 353.
13 Thus, tube sites – which are entirely dependent upon receiving uploads of popular
14 pornography – are reliant on mass infringement. See PAF 354. Here, approximately 86%
15 of the content on motherless.com is professionally produced, see PAF 355, and being that
16 motherless.com has no licensing relationships with professional production companies, see
17 Defendants’ Statement of Uncontroverted Facts (“SUF”) 19, virtually all of this material is
18 infringing. PAF 355.
19 Defendants must know that a large percentage of the content on the site is infringing
20 because motherless.com administrators review and approve all uploads. SUF 96-98; PAF
21 356. Much of the material even contains watermarks1 or other express indicia of ownership
22
23 1
Watermarks are copyright management indicia under the Copyright Act. See 17 U.S.C. §
24 1202(b); Cable v. Agence France Presse, 728 F .Supp.2d 977 (N.D.Ill.2010) (finding
professional photographer's name and link to website to be copyright management
25 information). The watermark therefore connotes copyright ownership by the entity
described in the watermark. The watermark thus represents a strong sign of reservation of
26 exclusive rights under the Copyright Act, and a watermark cannot be interpreted as
meaningless or irrelevant to contributory, vicarious and inducement liability, as well as
27 under the DMCA the actual knowledge inquiry, red flag knowledge/inquiry, notification of
infringing materials, and a reasonable policy to address infringement (which the absence of
28 deletions of watermarked content palpably demonstrates a desire to have infringing
content). See also Io Group, 409 F. Supp. 2d at 596-97.
2
1 – about 66% of the material has watermarks and another 20% other indicia of professional
2 creation based on a review by Mr. Lane – and anybody familiar with adult content would
3 recognize it as professional. PAF 355, 357. Simply rejecting uploads with watermarks
4 would dramatically reduce the infringement on the site. PAF 400. But Defendants do not
5 reject watermarked material unless the site has received prior complaints from the company
6 that owns the watermark in question. PAF 355, 357. Indeed, even if Defendants recognize
7 famous porn stars in the works being uploaded, they still accept the uploads from users
8 without any evidence that the uploader has a license. Id.
9 B. Defendants affirmatively encourage the uploading of infringing material
10 Because adult tube sites are heavily dependent on infringing material, Defendants
11 actively encourage users to upload infringing material. First, Defendants utilize categories
12 and groups on the website in order to make the site easier to search and use. PAF 357. The
13 categories on the site were created by Defendants. PAF 358. Originally, Defendants
14 would tie each upload to the most-appropriate category – a video featuring a blonde
15 performer might be tied to the category “Blondes.” Id. When it became too time-
16 consuming for Defendants to categorize the material, they kept the categories but allowed
17 uploaders to do the categorizing. PAF 359. At all times, Defendants have used categories
18 that concern material almost certain to be infringing. For example, the site used a category
19 called “Porn Stars.” PAF 360. A category dedicated to porn stars – professional
20 performers – is, by definition, dedicated to professional material almost certain to be
21 copyrighted protected. PAF 361. By encouraging people to upload “porn stars” material,
22 Defendants encourage infringing uploads.
23 When Defendants stopped categorizing content themselves, they came up with a new
24 organizational tool: groups. PAF 362. Groups are created by users and are based around a
25 theme of the user’s choosing. Id. At first, Defendants permitted users to create their own
26 groups without Defendants’ approval. PAF 363. But because Defendants were displeased
27 that many of the groups were unpopular, they started requiring approval of groups. Id.
28 Defendants also began to weed out the disfavored groups. PAF 364.
3
1 Many of the groups on the site clearly encouraged the uploading of infringing
2 material, either because they were based on persons who are professional porn stars or
3 celebrities and control the content they make (Emmy Watson, Lindsay Lohan), or because
4 they are based around copyright-protected movies or television shows (WWE DIVAS
5 GROUP), or because they are based around professional production companies (BangBros,
6 Girls Behaving Badly, etc.). PAF 365. In all such cases, Defendants are encouraging
7 people to upload material that is almost certain to be infringing. Id. Defendants’ users
8 understand this, and they encourage infringing material because they believe material that
9 is consistent with the website’s categories and groups – infringing or not – is wanted by the
10 site. PAF 421, 422.
11 Defendants also encourage people to upload infringing material by making mass
12 uploads possible. The motherless.com site tells users they can “upload hundreds (or
13 thousands) of images and videos at one time.” PAF 366. Few if any amateur creators of
14 pornography have many thousands of pieces of content such that they would want or need
15 to upload thousands of files at once. PAF 367. But sites based on “ripped DVD porn”
16 certainly need such a capability. And Defendants’ users take advantage of the situation,
17 sometimes uploading tens of thousands of files per week, often of copyrighted material that
18 is ripped from pirate websites. PAF 423, 424, 431, 433.
19 Finally, Defendants encouraged users to upload infringing content by giving rewards
20 for doing so. They provide rewards for users who upload the most content. PAF 368.
21 Some users have uploaded hundreds of thousands of pieces of content. PAF 369. It is
22 unreasonable to believe that anybody has created that much material themselves, or has
23 acquired it through licenses and is choosing to give it all away for free. Id. When you
24 reward people who upload hundreds of thousands of files, you reward people for engaging
25 in mass infringement. Id.
26 In addition, Defendants provide credits, which can be redeemed for merchandise or
27 cash, to users who upload the most popular content. PAF 370. Popular content is almost
28 always professional content. PAF 371. Production companies have the knowledge,
4
1 experience, and resources to give the public exactly what it wants, and their careers depend
2 successfully doing so. Id. And while it is theoretically possible for amateur creators of
3 pornography to make content that has wide appeal, it is relatively unusual. Id. Thus, when
4 you reward and encourage people for uploading popular content, you are effectively
5 rewarding people for uploading professionally produced, copyrighted content. Id.
6 These measures have been successful in encouraging users to engage in the mass
7 uploading of infringing materials. Some motherless.com users have uploaded hundreds of
8 thousands of files simply because they were pursuing the rewards and recognition provided
9 on Defendants’ website. PAF 425, 426.
10 C. Defendants exercise substantial editorial control
11 Unlike YouTube and other non-adult tube sites, Defendants exercise substantial
12 editorial control over their website. They encourage users to upload particular types of
13 content, as discussed above. They also place popular content where it is most likely to be
14 seen to make the website more user-friendly and popular. PAF 372. They choose certain
15 content for a prominent location on the website. PAF 373. They get rid of groups that are
16 unpopular. PAF 374. And they even delete users who upload unpopular videos. PAF 375.
17 Thus, Defendants take an active role in shaping the content on the site.
18 D. The rules governing the motherless.com site are a sham
19 Defendants encourage uploaders to push the envelope when it comes to the legality
20 of their content, telling users that “anything goes” and the site accepts content that other
21 sites “wouldn’t touch with a ten foot pole.” PAF 396. Having created a culture of
22 lawlessness, Defendants then hide behind the website’s terms of use and frequently asked
23 questions to escape responsibility for the content on the site. But those terms of use are a
24 sham. Defendants copied them from another site – apparently, one operating in the
25 Netherlands – but Defendants did so solely for legal cover. PAF 376. Defendants make it
26 as easy as possible for users to avoid having to read or understand the rules of the site.
27 PAF 399. And then Defendants routinely ignore their own rules because doing so increases
28 revenues. For example, the rules prohibit infringing material. But the entire business
5
1 model is based upon infringing material. PAF 352-355. The business model does not work
2 without it. Id.
3 In fact, Defendants ignore their own terms of use on issues more important than
4 copyright law. Defendants tell users that their uploads must be compliant with 18 U.S.C. §
5 2257, the federal record-keeping statute. PAF 377. But Defendants do not enforce that
6 rule. Id.
7 Moreover, while Defendants state that anything legal will be accepted on the site, in
8 reality Defendants accept substantial illegal material. Defendants say, for example, that
9 any group even hinting at underage material will be rejected. PAF 378. But actually
10 Defendants accept dozens and dozens of groups that are clearly based entirely on child
11 pornography, such as “hot jailbaits”, “Asian Girls U-18,” and “tweens.” Id. Indeed, the
12 most popular chat room on Defendants’ website was the jailbait chat room. PAF 430. The
13 rules say one thing; Defendants actually do another.
14
15 III. DEFENDANTS ARE LIABLE FOR INFRINGEMENT
16 A. Direct Infringement
17 Under the Copyright Act, the copyright owner has the exclusive right to reproduce
18 the copyrighted work, to prepare derivative works, to distribute copies, and to display the
19 work publicly. See 17 U.S.C. § 106. Defendants violate all these exclusive rights. When
20 Plaintiff’s movies were uploaded to motherless.com, Defendants reproduced the works by
21 making copies and storing those copies on their servers. PAF 379. They also took multiple
22 screen captures, called thumbnails, from the videos, each of which constitutes a derivative
23 work. PAF 380. They also distributed copies of the videos by making them available for
24 download to their premium members. PAF 381. And they publicly displayed the
25 copyrighted works on their website by making them available for the world to see at
26 motherless.com. PAF 382. Direct infringement is clear.
27 So is secondary liability, under both vicarious and contributory theories. The
28 seminal case in the Ninth Circuit is Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th
6
1 Cir. 1996). There, the defendant, Cherry Auction, owned a swap meet. Third-party
2 vendors paid Cherry Auction a fee for the right to sell product at the swap meet. Cherry
3 Auction did not directly sell any product, and it did not get a percentage of sales. Certain
4 vendors at the swap meet routinely sold copyrighted recordings belonging to the plaintiff,
5 Fonovisa, without a license. Cherry Auction was aware that infringing sales were taking
6 place. Fonovisa sued Cherry Auction under the Copyright Act for vicarious and
7 contributory infringement. Cherry Auction moved to dismiss before the trial court, and the
8 trial court granted the motion. The Ninth Circuit reversed.
9 B. Defendants are vicariously liable
10 On vicarious liability, the court found facts sufficient to state a cause of action
11 because Cherry Auction had sufficient control over the swap meet to end the infringing
12 activities and directly benefitted from those activities. Cherry Auction, like Defendants
13 here, “had the right to terminate [those engaged in the infringement] for any reason
14 whatsoever and through that right had the ability to control the[ir] activities.” Fonovisa, 76
15 F.3d at 262. It was irrelevant that Cherry Auction was not actively involved in sales and
16 did not supervise the individual employees. Id.
17 The court also held that Cherry Auction received a financial benefit from the
18 infringement, even though it never received any commission tied to the sales. But Cherry
19 Auction, like Defendants here, benefited from the infringement. The infringing sales
20 “enhance[d] the attractiveness of the venue to potential customers” and were thus a “draw.”
21 Id. At 263.
22 The case against Defendants is stronger than the successful case against Cherry
23 Auction. Defendants control who has access to the website and have the right – which they
24 sometimes use – to terminate users. Indeed, Defendants exercise far more control over the
25 website than Cherry Auction did over the swap meet in that they encourage users to upload
26 particular content, control the location of content based on its popularity, delete unpopular
27 material, and reward users with cash and recognition based on the popularity of their
28 uploads. PAF 368-375.
7
1 In addition, Defendants receive a direct financial benefit. As in Fonovisa, the

2 infringing activity draws customers, and those customers lead to revenues. PAF 383.
3 Indeed, while there is no indication that the infringing material was the primary draw for
4 customers in Fonovisa, infringing material is the primary draw to Defendants’ site. PAF
5 352-354. Defendants are vicariously liable.
6 C. Defendants are contributorily liable
7 Defendants are also contributorily liable. As in Fonovisa, Defendants directly
8 contribute to third parties’ infringement with knowledge of the infringement. The required
9 knowledge is not knowledge of a specific infringing act – there is no allegation of such
10 specific knowledge in Fonovisa – but rather knowledge of rampant infringement.
11 Defendants here have such knowledge. Their entire business model is based on infringing
12 uploads, and Defendants review each infringing work as it is uploaded. Moreover,
13 Defendants receive thousands of takedown notices, making clear the level of the
14 infringement on the site. SUF 252.
15 So the only question, as in Fonovisa, is whether Defendants “materially contributed
16 to the infringing activity.” In Fonovisa, the defendant did so by providing the space where
17 the infringing activity could happen. “[I]t would be difficult for the infringing activity to
18 take place in the massive quantities alleged without the support services provided by the
19 swap meet [including] the provision of space, utilities, parking, advertisement, plumbing,
20 and customers.” 76 F.3d at 264. Cherry Auction provided “the environment and the
21 market for counterfeiting recording sales to thrive.” Id. It was irrelevant that Cherry
22 Auction did not “expressly promote[] or encourage[] the sale of counterfeit products, or in
23 some manner protected the identity of the infringers.” Id. “[P]roviding the site and
24 facilities for known infringing activity is sufficient….” Id.
25 Here, Defendants have clearly provided the facilities for known infringing activity.
26 But Defendants’ activities go well beyond such contributions, and Defendants here would
27 be liable even under a much-stricter legal regime. Defendants do, in fact, “expressly
28 promote and encourage” infringement, and they also “protect[] the identity of infringers”
8
1 by allowing people to upload content anonymously. PAF 360-365, 384. Defendants are
2 liable for contributory infringement.
3
4 IV. DEFENDANTS ARE NOT ENTITLED TO SAFE HARBOR REFUGE
5 The DMCA did not revolutionize copyright law. Long before Congress sought to
6 shield innocent internet service providers, it gave similar protection to cable carriers and
7 routers, who were concerned that their acts of routing signals were technical acts of
8 reproduction that could give rise to copyright liability. Congress enshrined in the 1976 Act
9 the notion that “passive carriers” were exempt from liability. Nimmer on Copyright §
10 12B.01, citing U.S. Copyright Office “A Review of Copyright Licensing Regimes Covering
11 Retransmission of Broadcast Signals.” This was accomplished through 17 U.S.C. §
12 111(a)(3), which exempted from liability retransmissions or displays of work by cable
13 companies where the re-transmitter’s acts were “solely of providing wires, cables, or other
14 communications channels for the use of others” id. § 111(a)(3), or in the case of hotels and
15 apartments non-involved, passive acts simply of “relaying” signals, id. § 111(a)(1).
16 This passive-active line that distinguished between mere conduits of content and
17 those who directed and decided on the act of relaying the content became more significant
18 in the coming years. “With the advent of the Internet and online services, those same
19 considerations multiplied along with the explosion of new ways to use ‘wires, cables, or
20 other communications channels’." Nimmer on Copyright § 12B.01[A][1]. In drafting the
21 DMCA Congress borrowed from an early internet copyright case where a disgruntled,
22 former Scientologist posted L. Ron Hubbard materials online, and the Church of
23 Scientology sued both the poster and the Internet Service Provider, Netcom. The district
24 court held:
25 “It is not difficult to conclude that Erlich infringes by copying a protected
26 work onto his computer and by posting a message to a newsgroup. However,
27 plaintiffs' theory further implicates a Usenet server that carries Erlich's
28 message to other servers regardless of whether that server acts without any
9
1 human intervention beyond the initial setting up of the system. It would also
2 result in liability for every single Usenet server in the worldwide link of
3 computers transmitting Erlich's message to every other computer…. Although
4 copyright is a strict liability statute, there should still be some element of
5 volition or causation which is lacking where a defendant's system is merely
6 used to create a copy by a third party.”
7
8 Religious Technology Center v. Netcom On-Line Comm. Serv., Inc., 907 F. Supp. 1361,
9 1369-70 (N.D. Cal. 1995) (Judge Whyte).
10 This decision, and others like it, gave birth to similar active-passive distinctions in
11 the DMCA. Nimmer on Copyright § 12B.01[A] & [B]. For this reason, the Senate Report
12 accompanying the DMCA specifically noted that extant case law looking at the issue from
13 secondary principles was left intact and a series of safe harbors were created “for common
14 activities of service providers.” S. Rep. No. 105-25, 105th Cong., 2d Sess. 4 (1998), at 19,
15 quoted in Nimmer § 12B.01[C][1]. Those “common activities” of neutral conduits—
16 genuine service providers, like the earlier age’s cable or satellite entities that rerouted a
17 transmission as a passive conduit—were thus provided a safe harbor from the otherwise-
18 existing strict liability copyright tort regime that would attach because of reproduction and
19 on-going display over the internet. Thus, the Ninth Circuit rightly noted that “’[t]he
20 DMCA did not simply rewrite copyright law for the on-line world.’ Congress would have
21 done so if it so desired. Claims against service providers for direct, contributory, or
22 vicarious copyright infringement, therefore, are generally evaluated just as they would be in
23 the non-online world.” Ellison, 357 F.3d at 1077.
24 This Court has made much the same point in a case remarkably similar to this
25 one:
26 In many ways, the Digital Millennium Copyright Act is simply a restatement
27 of the legal standards establishing secondary copyright infringement-in many
28 cases, if a defendant is liable for secondary infringement, the defendant is
10
1 not entitled to Digital Millennium Copyright Act immunity; if a defendant is

2 not liable for secondary infringement, the defendant is entitled to Digital
3 Millennium Copyright Act immunity. [and]… In other words, inducement
4 liability and the Digital Millennium Copyright Act safe harbors are inherently
5 contradictory. Inducement liability is based on active bad faith conduct aimed
6 at promoting infringement; the statutory safe harbors are based on passive
7 good faith conduct aimed at operating a legitimate internet business.
8 Columbia Pictures Industries, Inc. v. Fung, 2009 WL 6355911 *15, 18 (C.D. Cal. Dec. 21,
9 2009) (Judge Wilson).
10 This background is critical because the fundamental question this case raises is
11 whether the DMCA permits a website to engage in activities that would clearly constitute
12 infringement in a non-internet context – activities like actively encouraging and benefitting
13 from infringement – without being subject to liability. In other words, does the DMCA
14 really allow entities to conduct actions online and secure copyright immunity when those
15 exact same actions off-line would undoubtedly result in infringement liability? It does not,
16 and Defendants’ argument to the contrary is wrong.
17 A. Defendants do not have a reasonable repeat-infringer policy
18 Before getting to the elements of the particular section 512(c) safe harbor that Defendants
19 claim, the DMCA is unequivocal that under no circumstances can an online service
20 provider enjoy safe harbor immunity from liability unless it implements and executes a
21 policy that terminates the accounts of repeat infringers in a reasonable manner. 17 U.S.C. §
22 512 (i)(1)(A); Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004) (“If a service provider
23 does not meet these threshold requirements [of 17 U.S.C. § 512 (i)(1)(A)], it is not entitled
24 to invoke [the DMCA’s] safe harbor limitations on liability.”). Defendants do not. On
25 these grounds alone, Defendants motion for summary judgment must be denied.
26 Under 17 U.S.C. § 512 (i)(1)(A), a defendant cannot claim the benefit of any safe
27 harbor unless it "has adopted and reasonably implemented, and informs subscribers and
28 account holders of the service provider's system or network of, a policy that provides for
11
1 the termination in appropriate circumstances of subscribers and account holders of the

2 service provider's system or network who are repeat infringers." Defendants here do not
3 have or enforce an appropriate policy for terminating users who are repeat infringers.s
4 This is clearly a sensitive area for Defendants, which is undoubtedly why Joshua
5 Lange lied about Defendants’ policy in his deposition. Mr. Lange asserted in his first day
6 of deposition that the motherless.com repeat-infringer policy is clear and unyielding: "If we
7 receive more than one takedown notice, we terminate the account." PAF 385. Lange also
8 testified that even a single takedown notice results in termination if the notice lists a large
9 number of infringing files. Id.
10 If Defendants actually operated the website in that manner, they would satisfy this
11 requirement. But Mr. Lange's account started to unravel in later testimony. Mr. Lange was
12 presented with a takedown notice that identified 21 infringing works. PAF 386. Based on
13 his earlier testimony, a takedown notice like that would result in the user's termination.
14 And, sure enough, Mr. Lange testified directly that he would terminate such a user:
15 Q: "Now, if this was the first e-mail that came that you ever received
referencing user BBQ69 with this list of around 21 different pieces of content
16 uploaded, would you automatically go and delete BBQ69's account upon
17 getting this e-mail?"
18 A: "I would -- yes, I would."

19 Id.
20 He says he would, but he didn't. This fact was made clear in the deposition when
21 Mr. Lange was shown a screen capture showing that BBQ69 was still an active user. PAF
22 387. And when asked why he had not terminated BBQ69, Mr. Lange blamed a technical
23 glitch:
24 Q: "Well, let me ask you this: Do you know if BBQ69 has been
deleted?"
25
26 A: "It has not."
27 Q: "Why is that?"
28 A: "I couldn't tell you."
12
1 Q: "Is it a mistake that it wasn't deleted?"

2 A: "It could have been. It could have been before our automated
3 system for removing people was in place or maybe there was a problem with
it."
4
5 Id.
6 This explanation sounded plausible until Mr. Lange's dissembling came to light in
7 the later deposition of Sean Hickey, the person who built the motherless.com website. Mr.
8 Hickey made clear that an automated system of the type described by Mr. Lange does not
9 and never did exist at motherless.com:
10 Q: "Now is there -- is there an automated system at Motherless for
deleting people who have on more than one occasion uploaded content that is
11 suspected to be copyright protected?"
12
A: "No."
13
Q: "Now, if there were such a system at Motherless, you would
14 know about it I'd suspect, right?"
15 A: "I would have to write the system, correct."
16
...
17
Q: "Has an automated system for removing people ever existed at
18 Motherless?"
19
A: "Not to my knowledge, no."
20 PAF 388.
21
At his next day of deposition, of course, Lange was then forced to concede that no
22 automated system exists. But he had no explanation for why he had testified differently in
his last deposition:
23
24 Q: "So as you sit here today, you're not sure why you testified under
oath previously that Motherless has an automated system for removing people;
25 correct?"
26 A: "Yes. Right."
27
28 PAF 389.
13
1 Mr. Lange went on to explain that his actual practice when deciding whether to
2 terminate a repeat infringer is a multi-factor balancing act that he does in his own head, the
3 goal of which is to determine whether the user is uploading copyrighted material
4 maliciously or intentionally, in which case the user is terminated. But if Lange believes the
5 user is uploading copyrighted information accidentally, he leaves the user in place. PAF
6 390.
7 Whether this second explanation is more accurate than the first is something the jury
8 should decide. In light of Lange's original, perjurious testimony, his second explanation
9 cannot be accepted at face-value. And the policy Mr. Lange now describes does not satisfy
10 the statutory requirement in any event. Mr. Lange asserts that he can peer into the minds of
11 users to determine if their infringement is malicious or well-intentioned. But even if he
12 could discern his users' intent, his conclusion would be irrelevant. If users are repeatedly
13 uploading infringing information, what difference does it make if their infringement is
14 malicious or not? It is still infringement, it is still unlawful, and the user should still have
15 its access to the site ended so further infringement does not take place.
16 But, in far too many cases, the motherless.com user is not cut off. Indeed, many of
17 the users who uploaded Ventura's videos at issue here were repeat infringers who Mr.
18 Lange chose not to delete. All but one of the users who uploaded Ventura's videos to the
19 motherless.com site had uploaded other material that had triggered takedown notices, and
20 as late as August 2012 -- more than a year after this lawsuit was filed -- the majority of
21 them were still active users on the motherless.com site. PAF 391. Defendants have
22 therefore spectacularly failed to terminate the accounts of repeat infringers and, on these
23 grounds alone, cannot qualify for the DMCA safe harbor.
24 Indeed, one such user, Kristy7187, was at one time the most prolific uploader on the
25 motherless.com site, with over 300,000 uploaded pieces of content in a little over a year.
26 PAF 392. Those statistics are troubling apart from knowledge of specific infringements. It
27 is unreasonable to believe -- as Mr. Lange claims he did -- that an anonymous user would
28 own or have a license to more than 300,000 pieces of pornography -- an expensive
14
1 investment if true -- and decide to make that material available for free over the internet.
2 PAF 367. But, here, Mr. Lange also knew that this particular user had triggered not less
3 than five previous takedown notices for content he or she had uploaded. PAF 391. Yet,
4 despite that track record, Kristy7187 remained a user on the motherless.com site a year into
5 this litigation, long after Defendants knew that Kristy7187 had uploaded a dozen or so
6 Ventura clips.
7 And Mr. Lange's eventual termination of Kristy7187 is instructive. He told
8 Kristy7187 that "[t]he DMCA law clearly says we have to terminate repeat offenders.
9 Your past DMCA notices have been spread out over some time, and based off of the
10 amount of files you had, it wasn't a problem." PAF 393. To Joshua Lange, five prior
11 takedown notices "wasn't a problem." But to copyright owners, and to Congress when it
12 drafted the DMCA, five takedown notices is a problem. Indeed, to date, courts have only
13 approved of termination policies where an infringing user is given one, or at most two,
14 warnings before permanent termination of their account. See, e.g., Io Group, Inc. v. Veoh
15 Networks Inc., 586 F. Supp. 2d 1132, 1148 (N.D. Cal. 2008) (approving, as reasonable, a
16 policy that terminated users upon any copyright infringement following a first warning).
17 At the very least, a jury is entitled to decide whether Defendants' failure to enforce a more-
18 rigorous policy defeats their safe-harbor defense.
19 B. Defendants are not entitled to the benefit of the 512(c) safe harbor
20 Defendants also cannot satisfy three key elements of § 512(c) – the safe harbor they
21 allege applies to them – because: (1) they possess actual and red flag knowledge under
22 512(c)(1)(A)(i) & (ii) and did not expeditiously delete under subsection (iii); (2) the
23 material is not stored at the direction of users as required by 512(c)(1); and (3) they receive
24 a financial benefit attributable to the infringement under § 512(c)(1)(A)(B). Each is
25 addressed in turn in Sections 1, 2 & 3 below.
26
27
28
15
1 1. There is a genuine issue as to actual knowledge

2 a. The correct “actual knowledge” reading.
3 The primary reason for the dispute between the parties on Defendants’ knowledge
4 concerns the parties’ differing answer to this question: Does UMG Recordings, Inc. v.
5 Shelter Capital Partners LLC, 667 F.3d 1022 (9th Cir. 2011) (hereafter "UMG") teach that
6 the DMCA’s 512(c)(1)(A) “actual knowledge” provision requires knowledge as to specific
7 and identifiable instances of infringement? Because it does not, Defendants’ entire safe-
8 harbor defense fails.
9 The facts of UMG are critical. There, Veoh was a website that allowed people to
10 share content over the internet by registering with Veoh and then uploading content that
11 other members could view. 667 F.3d at 1026-27. Upon upload, the Veoh system
12 automatically reproduced the video and displayed it without any review or approval process
13 by Veoh employees. Id. at 1027. Since 2006, Veoh had used a hash filtering technology to
14 try to mark copyrighted works and then prevent similar files from being re-uploaded. Id. at
15 1028. Veoh was completely hands-off. Unlike Defendants here, Veoh did not pay
16 strangers to upload content, encourage the uploading of particular content, manage the
17 content, view and approve content, delete unpopular content, provide a means to upload
18 files on a massive scale, or reward users who uploaded large volumes of content (not to
19 mention the fact that Veoh also terminated all user accounts after one warning for copyright
20 infringement).
21 Because Veoh was completely passive and played no role in the content itself, the
22 Ninth Circuit applied longstanding liability principles, now enshrined in the DMCA, to find
23 Veoh not liable. The Court rejected the plaintiff’s argument that Veoh was liable if it knew
24 that infringement sometimes took place on the site. “We therefore hold that merely
25 hosting a category of copyrightable content, such as music videos, with the general
26 knowledge that one’s services could be used to share infringing material, is insufficient
27 to meet the actual knowledge requirement under § 512(c)(1)(A)(i).” Id. at 1038
28 (emphasis added).
16
1 This holding is consistent with longstanding, pre-DMCA copyright principles. The

2 court expressly looked to Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984)
3 and the non-DMCA, on-line case of A&M Records v. Napster, 239 F.3d 1004 (9th Cir.
4 2001). In Sony, the plaintiff tried to hold Sony liable for copyright infringement under
5 secondary principles for the unlawful video recording that end users did of plaintiff’s
6 content with the VCR’s that Sony sold, on the theory that Sony had constructive knowledge
7 that users could use its products to infringe. 464 U.S. at 439. The Supreme Court refused
8 to impute knowledge to Sony simply because it made a product that was capable of being
9 used to infringe. Id.
10 The Ninth Circuit relied on this precise concept in Napster to similarly reject any
11 imputation of knowledge for secondary liability unless the online web company had
12 specific information of infringing activities. 239 F.3d at 1021. And UMG closed the loop
13 by simply indicating that for the knowledge inquiry in copyright cases subject to the
14 DMCA, the same concept—passive, uninvolved hosters who merely know a web service
15 can infringe (Napster and Veoh) or passive manufacturers who know a product can infringe
16 (Sony)—more is needed for liability to attach, specifically for them more specific
17 knowledge is required. 667 F.3d at 1038; id. at 1041 (“it is not enough for a service
18 provider to know as a general matter that users are capable of posting unauthorized content;
19 more specific knowledge is required.”).
20 Thus, Veoh, which was the internet-age equivalent of 1980’s Sony – a mere conduit
21 of information controlled by others – got the same treatment. Napster, by contrast, was
22 treated differently because it had sufficient involvement and knowledge to be liable. See
23 Napster, 239 F.3d at 1021-22. But Sony never held, and traditional liability principles do
24 not hold, that the only way liability can attach is where the party has specific knowledge of
25 specific infringements. In fact, the law is squarely to the contrary as shown in Fonovisa, 76
26 F.3d 259—a case cited favorably in UMG—where knowledge of rampant infringement
27 (and not specific acts of infringement) sufficed for the imposition of liability.
28
17
1 This is the undisputed state of the law and has long been. This is why the Ninth
2 Circuit’s jury instruction does not require “specific knowledge of the infringements” as one
3 of the elements for secondary liability. Thus, it is error to read UMG as importing only one
4 narrow aspect of secondary liability principles—specific knowledge was needed for an
5 entity like Sony that was completely passive and had no role in shaping the content—and
6 applying that one aspect of secondary liability—specific knowledge—across the board in §
7 512(c).
8 Defendants’ argument thus creates an illogical break between liability for non-
9 internet entities and internet entities. In Fonovisa, the Cherry Auction swap meet was
10 secondarily liable because it provided the means for infringement, knew in general that
11 infringement occurred (even if it did not know of any specific instance), and benefitted by
12 the derivative revenue it received because of the presence of infringing content (there,
13 parking revenue and other sales). But under Defendants’ worldview if the Cherry Auction
14 swap meet had gone from physical space to cyberspace and became
15 www.cherryauction.com, it could be engaged in the identical activity – creating a space
16 where rampant copyright infringement takes place while collecting revenues for doing so –
17 but it would be safe so long as Cherry Auction could claim that it was not aware of any
18 specific sale of a specific CD to a specific customer. This was not the DMCA’s intent. To
19 the contrary, the DMCA was enacted to ensure that passive conduits in this new technology
20 age—the internet era—would not be liable when they did nothing and were simply
21 “common carriers” like the cable and satellite companies who were similarly protected for
22 their passive, conduit activities in a previous age.
23 Defendants, then, seek to expand UMG dramatically. UMG’s holding is narrow, and
24 perfectly consistent with traditional liability principles in an offline world. The Ninth
25 Circuit did not conclude that in all cases to meet the “actual knowledge” standard there
26 must be specific knowledge of a specific sale. That standard was never argued by UMG, or
27 even Veoh, and finds no support in the background law of secondary liability that the Court
28 examined. And contrary to Defendants’ argument, the Ninth Circuit did not have before it
18
1 the question this case presents: whether one who is not a mere hoster but instead is an
2 active participant in the encouragement and facilitation of infringement can evade liability
3 because of a lack of specific knowledge of particular infringements. As the UMG court did
4 in answering its question, this Court must look to traditional liability principles to find that
5 answer.
6 This approach is consistent with this Court’s decision in Fung. There, this Court
7 relied in part on Judge Matz’s decision on the safe harbor in UMG, see Fung, 2009 WL
8 6355911 at *16, a decision the Ninth Circuit expressly affirmed on appeal. 667 F.3d at
9 1029 (“careful and comprehensive decision”), 1042 (“We agree with Judge Matz…”).
10 Fung was and is good law and is factually very similar to the present case. In Fung,
11 Defendants were denied the safe harbor because (1) the facts from an expert demonstrated
12 they knew the vast majority of content was infringing, (2) defendant had himself
13 downloaded others’ content, and (3) they had taken affirmative steps to host infringing
14 content based upon tag words that indicated the content was unlawful (there “top 20
15 movies,” “piratz”). Id. at *17. This Court thus held: “In light of this overwhelming
16 evidence, the only way Defendants could have avoided knowing about their users'
17 infringement is if they engaged in an “ostrich-like refusal to discover the extent to which
18 [their] system[s] w[ere] being used to infringe copyright.” Id. *18 (internal citation
19 omitted).
20 The same result is required here. Defendants say they lacked knowledge of any
21 specific infringement even though they reviewed every upload. That is unlikely, but also
22 irrelevant. Under these facts, if Defendants were ignorant of the mass infringement on the
23 site it is only because of an ostrich-like refusal to see it. The DMCA does not reward such
24 behavior.
25 b. There are issues of fact as to Defendants’ knowledge.
26 Defendants are not entitled to summary judgment even under their own legal
27 standard. But if the proper understanding of the knowledge requirement is applied, this is
28 not even a close case. Defendants are not mere hosts with only generalized knowledge that
19
1 infringement could occur, as was the case with defendant Veoh. Defendants take
2 substantial steps to shape and present the content on the site, in ways that take it far outside
3 the role of passive conduit. See Section II, supra. By helping to shape the content on the
4 site, Defendants automatically fall outside of the safe harbor.
5 Put another way, if motherless expanded its business operations and opened a
6 physical site where its customers could acquire pornography, and if in the process it (1)
7 encouraged third parties to fill its site with content it ripped from copyrighted DVD’s (2)
8 knew that almost all of the activity at the site involved the sale of infringing material, and
9 (3) made money from the new business, there would be no question about Defendants’
10 liability under Fonovisa and its progeny. Defendants say they are safe here, however,
11 because the DMCA works a substantial change in copyright law over the internet. As
12 shown above, it does not. The same acts that constitute infringement in the real world
13 constitute infringement in the cyberworld.
14 c. There are issues of facts as to Defendants’ red flag knowledge
15 under subsection (ii).
16 Subsection (ii)’s red flag awareness test indicates that if there is no actual
17 knowledge, the Defendant must still show that it was also “not aware of facts or
18 circumstances from which infringing activity is apparent.” 17 U.S.C. 512(c)(1)(A)(ii).
19 Note that to impose a “specific” knowledge requirement into this section would render the
20 red flag provision superfluous, i.e., if specific infringements need to be known of to meet
21 red flag awareness, then there is no such thing as red flag awareness because there is
22 always specific knowledge. Indeed, the very existence of the red-flag knowledge test
23 demonstrates that actual, specific knowledge is not required for the imposition of copyright
24 liability, either offline or online. Furthermore, even if there was no genuine issue of
25 material fact here as to the absence evidence of actual knowledge, there is an issue of fact
26 as to whether infringing activity was apparent.
27 Here, Defendants have more than mere general knowledge that their site could host
28 copyrightable works or be the conduit for infringement. They knew the infringement was
20
1 rampant; indeed, it was the very foundation of their entire business model. PAF 351-355.
2 Defendants had red-flag knowledge.
3 d. There are issues of fact issues as to Defendants’ expeditious
4 removal.
5 Defendants had actual knowledge as argued above (under either a “specific” test or
6 under the test without “specific” knowledge) at the time the Plaintiff’s clips were uploaded
7 to the site. Defendants saw and approved all of the videos when they were uploaded. It
8 was clear that the videos were professionally produced. And Defendants know they have
9 no license deals with professional production companies. See Section II.A., supra.
10 Defendants do not have a right under the DMCA to knowingly permit infringing material
11 on the website and leave it there until they receive a DMCA takedown notice. By leaving
12 the material on the site with knowledge of its infringement, Defendants did not
13 expeditiously remove infringing material upon becoming aware of it.
14 2. The infringement was not just "at the direction of a user".
15 The safe harbor provided under § 512(c)(1) only applies infringement of copyright
16 that occurs “by reason of storage at the direction of the user…” Infringements that do not
17 occur by reason of storage at the direction of the user therefore fall entirely outside of the
18 scope of the safe harbor. Thus, Defendants’ motion for summary judgment must be denied
19 as there are infringements in question in this case that were unequivocally not at the
20 direction of a user.
21 The key question here revolves around the phrase “at the direction of the user.” This
22 phrase is not specifically defined in some further fashion in the DMCA. But the legislative
23 history of the entire DMCA and the Ninth Circuit’s law interpreting the DMCA makes
24 clear that: (1) the DMCA did not create new legal regime for immunity-liability that
25 differed to the principles already in existence in the off-line world, see Ellison, 357 F.3d at
26 1077; and (2) that the fundamental tenet of the DMCA is immunity for passive, conduit-
27 like behavior, Fung, 2009 WL 6355911 at *15. Thus, the House Report specifically stated
28 that when content is on the website due to the service provider’s actions or decisions, it
21
1 cannot be said to be still “at the direction of the user”: “Information that resides on the
2 system or network operated by or for the service provider through its own acts or decisions
3 and not at the direction of a user does not fall within [ § 512(c) ].” H.R.Rep. No. 105–
4 551(II) at 53 (1998). Accordingly, the phrase can only be understood to mean that a
5 service provider who is involved in the uploading of content and not simply a conduit for
6 the end users to upload and share information cannot hide behind the DMCA.
7 Here, there are ample facts that demonstrate that Defendants are anything but passive
8 bystanders to users’ uploading and in fact Defendants themselves are involved with the
9 users in the uploading of content. See Section II, supra.
10 3. Defendants receive a financial benefit.
11 Defendants err in requiring a specificity requirement for financial benefit to the
12 content at issue. But even if they are correct, there are issues of fact. The videos were
13 watched over 30,000 times by end users. Defendants’ sole revenue model is based upon
14 advertisers paying when eyeballs view the content on the site. Advertisers paid for those
15 31,000 eyeballs, and so issues of fact exist even within Defendants’ legal narrative. But
16 also, their legal assertion is wrong: UMG never required a specificity requirement for this
17 factor. As the Ninth Circuit has made clear, the DMCA merely codified existing copyright
18 principles. Thus, the financial benefit that is required is the same financial benefit required
19 in non-internet contexts in Fonovisa, and Defendants satisfy that element. See discussion
20 of Fonovisa in Section III, supra.
21 4. Defendants had the right and ability to control.
22 Once again, the right-to-control element is the same as the one analyzed in Fonovisa,
23 and Defendants satisfy it. See discussion of Fonovisa in Section III, supra. Moreover, as
24 explained above, Defendants had specific knowledge even under the improper legal
25 standard for which they argue. Thus, even if that same standard applies to this element, the
26 Defendants had the requisite right and ability to control the specific infringements by, when
27 seeing content that they knew was infringing in their review process (issues of fact on this
28 exist, supra) not approving it.
22
1 V. AN INJUNCTION IS NOT MOOT

2 Defendants contend that any need for an injunction is moot. Not so. The DMCA only
3 limits liability for monetary damages for acts of infringement. 17 U.S.C. § 512(c). It specifically
4 does not limit any right to injunctive relief. In fact, the DMCA specifies in § 512(j) the
5 appropriateness of injunctive relief as applied to those who garner the § 512(c) safe harbor from
6 financial liability. Section 512(j) specifically provides courts with their full traditional powers to
7 enjoin any behavior the court deems necessary “to prevent or restrain infringement of copyrighted
8 material…,” as well as specifically providing for injunctive relief focused on preventing access to
9 particular users who have infringed. 17 U.S.C. § 512(j)(1)(A)(i)-(iii).
10 General injunctive power principles similarly teach that an injunction should issue to
11 curtail infringement when there is a potential for future harm. Microsoft Corp. v. McGee,
12 490 F. Supp. 2d 874, 882 (S.D. Ohio 2007). A defendant carries a “heavy burden” to show
13 that any voluntary cessation of infringing conduct may render an injunction unnecessary.
14 Lyons Patnership v. Morris, 243 F.3d 789, 800 (4th Cir. 2001); Polo Fashions v. Dick
15 Bruhn, Inc., 793 F.2d 1132, 1135 (9th Cir. 1986) (all doubts construed against infringer in
16 favor of innocent producer). Indeed, as Judge Posner wrote: “cessation of an unlawful
17 practice doesn’t exonerate a defendant, since unless enjoined he might resuming infringing
18 conduct.” Flava Works v. Gunta, 689 F.3d 754, 762 (7th Cir. 2012); see also Polo, 793
19 F.2d at 1135-36 (same). As such, a request for an injunction does not become moot simply
20 because a party ceases an act of infringement upon notice. See id.
21 Here, an injunction should issue as follows. First, Defendants refuse to take down
22 watermarked content in nearly all instances as part of their firm policy—notwithstanding
23 that watermarks demonstrate infringing material—and the users who infringed Plaintiff’s
24 content herein were not even deleted as users for over a year after the infringements were
25 brought to Defendants’ attention. PAF 355, 357, 391, 392, 400. Defendants thus should be
26 enjoined from posting any watermarked content, which will protect Plaintiff herein who
27 watermarks its content as a means of signaling to the world that the so-marked content
28 belongs to it. This will prevent further infringement and since Defendants delete certain
23
1 watermarked content already in its upload-approval process, see PAF 400 (Defendants
2 delete watermarked content if they have received prior complaints from that company), this
3 will not be at all burdensome under § 512(j)(1)(A)(iii) to implement for Defendants. (In
4 fact, since Defendants delete some but not all watermarked content depending upon the
5 exact wording of the watermark under their current policy, this injunction ill make their
6 business operations easier and eliminate nay need to parse a given watermark: if a
7 watermark, delete).
8 Second, Defendants continue with their specific business model to induce
9 infringement and unless those acts of extreme inducement, contributory and vicarious
10 infringement are enjoined (to wit: providing mass upload capability and providing
11 anonymous upload capability), Plaintiff will continue to suffer acts of infringement of its
12 works. Defendants thus should be enjoined and restrained from providing users with the
13 means to mass upload files, and should be also enjoined from permitting any anonymous
14 uploads.
15 Related, so as to effect § 512(j)(1)(A)(ii)’s proviso of the need to issue an order
16 restraining infringers from accessing the site, Defendants must be enjoined from permitting
17 any anonymous uploads (as requested above) and must be required to demand full name
18 and contact information form any subscribers so that the underlying, original direct
19 infringers of Plaintiff’s content herein can always be ascertained if they ever try to infringe
20 again (and so that future infringers may be quickly ascertained).
21
22 VI. CONCLUSION
23 Defendants are direct infringers and, under well-established principles set forth in
24 Fonovisa, are liable as secondary infringers as well. Defendants do not qualify for any
25 DMCA safe harbor because of their failure to comply with the statute’s basic prerequisites,
26 including its requirement that online service providers seeking its refuge implement and
27 execute a reasonable termination policy for repeat infringers. Just as fundamentally,
28 Defendants’ position for why they do qualify for DMCA safe harbor protection is fatally
24
1 flawed. Defendants’ primary argument is that they are free of liability because the law of
2 copyright is different in the internet context, and in order to find liability under the DMCA,
3 a defendants must have specific knowledge of a specific infringing act. That is simply not
4 true. Defendants’ argument, if accepted by the courts, would open the door to professional
5 internet infringers who design websites to encourage infringement, profit from the
6 infringement, but avoid liability by avoiding knowledge of any specific, infringing upload.
7 That is not and never should be the law. Defendants’ motion for partial summary judgment
8 must be denied.
9
10 Dated: November 20, 2012 ONE LLP
11 By: /s/ Christopher W. Arledge
Christopher W. Arledge
12 Attorneys for Plaintiff,
Ventura Content, Ltd.
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Case 2:11-cv-05912-SVW-FMO Document 90 Filed 11/20/12 Page 1 of 28 Page ID #:1371

1 Peter Afrasiabi, Esq. (Bar No. 193336)

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

1 In addition, Defendants receive a direct financial benefit. As in Fonovisa, the

1 not entitled to Digital Millennium Copyright Act immunity; if a defendant is

1 the termination in appropriate circumstances of subscribers and account holders of the

18 A: "I would -- yes, I would."

1 Q: "Is it a mistake that it wasn't deleted?"

1 1. There is a genuine issue as to actual knowledge

1 This holding is consistent with longstanding, pre-DMCA copyright principles. The

1 V. AN INJUNCTION IS NOT MOOT

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