## Facts

- Harlan Ellison owned copyrights in several short stories.
- Without authorization, Stephen Robertson posted copies of some stories to a USENET newsgroup.
- USENET postings were propagated and copied to servers worldwide, including servers operated by America Online, Inc. (AOL).
- AOL provided subscribers access to the relevant USENET newsgroup and stored postings on its news servers, allowing subscribers to view or download the allegedly infringing copies.
- Ellison attempted to notify AOL of the infringement; evidence indicated AOL had changed its designated email address for copyright notices without adequate forwarding or monitoring.
- Ellison also presented evidence of telephone notice to AOL.
- Ellison alleged AOL did not act expeditiously to remove or disable access to the infringing material and benefited indirectly from providing access.

## Issues

1. Whether evidence created a triable issue that AOL was contributorily liable by knowingly and materially contributing to infringement through storage and subscriber access to USENET postings.
2. Whether AOL was vicariously liable by having the right and ability to supervise the infringement and receiving a direct financial benefit causally connected to the infringing activity.
3. Whether AOL was entitled to summary judgment based on a DMCA safe-harbor limitation of liability under 17 U.S.C. § 512, given disputes about notice mechanisms and repeat-infringer policy implementation.

## Decision

- Affirmed summary judgment for AOL on vicarious infringement because Ellison failed to show a causal connection between infringement and a direct financial benefit to AOL.
- Reversed summary judgment for AOL on contributory infringement because a reasonable jury could find knowledge (including through faulty notice handling and other communications) and material contribution (through server storage and subscriber access).
- Reversed summary judgment for AOL on the DMCA safe-harbor defense because factual disputes existed as to whether AOL satisfied statutory prerequisites (including effective notice receipt and reasonable implementation of a repeat-infringer policy).
- Remanded for further proceedings consistent with these rulings.

## Legal Principles

- Contributory copyright infringement requires (1) knowledge of infringing activity and (2) inducing, causing, or materially contributing to another’s infringement; providing server storage and user access can constitute material contribution when knowledge is disputed.
- Vicarious copyright infringement requires (1) the right and ability to supervise the infringing conduct and (2) a direct financial benefit; the plaintiff must show a causal connection between the infringement and the asserted financial benefit.
- DMCA safe-harbor protection under 17 U.S.C. § 512 is conditioned on meeting statutory requirements, including designating and maintaining workable channels to receive infringement notices and adopting and reasonably implementing a repeat-infringer termination policy; disputed compliance can preclude summary judgment.
- The service provider bears the burden of establishing eligibility for safe-harbor protection as an affirmative defense at the summary-judgment stage.

## Conclusion

The Ninth Circuit held that an ISP’s storage of and subscriber access to infringing USENET postings, combined with evidence supporting knowledge, could support contributory liability and defeat summary judgment, and that disputed compliance with DMCA conditions could defeat a safe-harbor defense, while vicarious liability failed absent evidence tying infringement to a direct financial benefit.


Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004)