Elsevier Ltd. v. Chitika, Inc.
2011 U.S. Dist. LEXIS 138838
D. Mass.2011Background
- Plaintiffs Elsevier and Wiley sue Chitika for contributory infringement based on the Pharmatext.org site run by Saggi.
- Pharmatext advertised free e-books; users could download entire texts without payment, with Pharmatext earning ad revenue from third-party ads.
- Plaintiffs’ investigator Burke downloaded full copies of their books from Pharmatext in August 2010, without authorization.
- Pharmatext was shut down by a court order and preliminarily enjoined; Whois Privacy Protection Service previously restrained transfer of the domain.
- Plaintiffs filed suit on January 6, 2011 alleging direct infringement by Saggi and contributory infringement by Chitika.
- Chitika moved for judgment on the pleadings arguing lack of viable direct infringement and lack of knowledge or material contribution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Direct infringement viability | Burke’s downloads evidences direct infringement. | No act of direct infringement occurred entirely within the United States. | Not clearly established; extraterritoriality/preclusive factual issues prevent dismissal on this ground. |
| Contributory infringement knowledge | Chitika knew or should have known of infringing activity and strategically targeted infringers. | Chitika had no knowledge of infringing content and cannot be shown to have knowledge. | Court finds no plausible pleadings of knowledge; contributory liability unlikely. |
| Contributory infringement materiality | Chitika’s revenue enabled Pharmatext’s infringement. | Chitika did not create or promote the infringement and did not substantially contribute to it. | Even if knowledge were shown, materiality not plausibly pled; court declines to decide definitively given knowledge deficiency. |
Key Cases Cited
- Grokster, Ltd. v. MGM, 545 U.S. 913 (U.S. 2005) (concept of contributory infringement via inducing direct infringement)
- A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) (secondary liability requires direct infringement)
- Allarcom Pay Television, Ltd. v. Gen. Instrument Corp., 69 F.3d 381 (9th Cir. 1995) (extraterritoriality and limits of U.S. copyright law)
- Update Art, Inc. v. Modiin Publ’g, Ltd., 843 F.2d 67 (2d Cir. 1988) (extraterritorial application of copyright)
- Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788 (9th Cir. 2007) (discusses material assistance and liability of payment processors)
- Visa Int’l Serv. Ass’n v. Perfect 10, Inc., 508 F.3d 1146 (9th Cir. 2007) (related discussion on contributory infringement and essential services)
- Napster, Inc. v. Religious Tech. Center, 902 F. Supp. 1230 (N.D. Cal. 1995) (early discussions of online infringement liability)
- Pleading standards cited in First Circuit, 12 F.3d XX (2000s) (pleading standards for plausibility and factual enhancement)