Damon Chetson 1

Search engines allow millions of users to locate content on the Internet, including content offered by individuals and companies who have infringed upon a copyright holder's rights. Copyright Law's contributory infringement doctrine presents a dilemma for search engines like Google, whose services may facilitate the infringement of copyrights by enabling users to locate such content on the Internet. The Ninth Circuit's recent decision in Perfect 10, Inc. v. Amazon.com, Inc. highlights the problems associated with contributory liability doctrine in copyright law in the digital era. The Ninth Circuit Court of Appeals remanded the case to the district court, holding that “reasonable and feasible” means were available to Google, enabling it to block access on its search engine to content that violates a copyright holder's rights. This recent development illustrates some of the problems of applying the standard of contributory liability to search engines on the Internet.

I. INTRODUCTION: REDEFINING CONTRIBUTORY LIABILITY POST- GROKSTER

This recent development analyzes contributory copyright liability in light of Perfect 10, Inc. v. Amazon.com, Inc.,2 a case pitting a copyright owner against the search engine Google. Third-party copyright liability in general and contributory liability in particular are at the forefront of copyright battles currently taking place in U.S. courts. Search engines3 often find themselves at odds with copyright holders interested in securing and maintaining exclusive rights to their online content. The extent to which copyright holders can succeed on contributory liability claims against search engines will determine their future viability as comprehensive sources of information for the public.

In Perfect 10, the copyright holder, a pornographic website, asserted that third parties had directly infringed on its copyrighted material by “reproducing, displaying, and distributing unauthorized copies of Perfect 10's copyrighted images,”4 a claim not disputed on appeal by Google.5 The Ninth Circuit acknowledged the Supreme Court's holding in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.6 that a party is liable for contributory infringement by “intentionally inducing or encouraging direct infringement.”7 However, the Ninth Circuit elaborated upon the rule in Grokster by explaining that the test for contributory infringement does not require the defendant to prove inducement.8 Drawing on a line of copyright infringement cases stretching back to Gershwin Publishing Corp. v. Columbia Artists Management, Inc.,9 the Court explained that “intentionally inducing or encouraging direct infringement”10 could be proven by showing a defendant's “knowing failure to prevent infringing actions.”11

This recent development briefly reviews the development of contributory liability in copyright law, focusing in particular on its development as it relates to cyberspace law. Further, it analyzes the application of contributory liability doctrine in Perfect 10, noting the Ninth Circuit's efforts to reconcile the Supreme Court's holding in Grokster requiring a showing of intent with previous decisions in Napster12 and Netcom,13 which relied on imputed intent to find contributory liability. This recent development argues that the Ninth Circuit's test is invalid in light of Grokster and that the Court erred in its decision to remand the case to district court for factual findings on the “reasonable and feasible means for Google to refrain from providing access to infringing images.”14 Finally, this recent development argues that the Ninth Circuit's test, by focusing on the “reasonable and feasible means” available to the alleged contributory infringer, fails on public policy grounds.