Perfect 10, Inc. v. Visa International Service, Ass'n

Contrary Judge suggestion, Smith’s 10, INC., much PERFECT Plaintiff- logging, that too rather than

appears Appellant, enough, caused the de- has economic Boundary A County. spokesper- cline v. Riley Company, son for Lumber Creek SERVICE, VISA INTERNATIONAL bought mill company that site ASSOCIATION; Corpora First Data Louisiana-Pacific, why mill explained tion; International, Inc.; Cardservice not reopen: enough would “There’s not Bank; Humboldt Mastercard Interna support mill operation raw material to a at Inc., tional, Defendants-Appellees. Ferry.”2 A Bonners Louisiana-Pacific No. 05-15170. closure, spokesperson explained also business, stating, “In the lumber we con- Appeals, United States Court of situation, tinue to see an oversupply Ninth Circuit. prices.”3 By depleting historic low 4, Argued and Submitted Dec. 2006. depressing price “raw materials” and through oversupply, 3, of lumber indus- July Filed 2007.

try put people has out of work.

I have the utmost sympathy for those unemployed by trends,

left these recent accept Judge

but I cannot Smith’s asser- judiciary,

tion that rather than the

industry, primarily to blame.4 Hansen, Ferry (2007), 2. Dan http://www.internation Bonners Mill Re- Won’t available at WA), open, Spokesman (Spokane, July Rev. alpaper.com/PDF/PDFs_for_Our_Company/ 23, 2003, 2007_ at A8. Proxy_Statement.pdf. Weyerhaeuser’s package CEO $4 received worth million in Kramer, Becky May 3. Buy Timber Town Two Weyerhaeuser, Notice 2007 Annual of Sawmills, Spokesman (Spokane, L-P Rev. Meeting Proxy Shareholders Statement 2003, WA), 30, added). May (emphasis at A1 (2007), http://library. available at Notably, corporate-ir.net/library/92/922/92287/items/ while low-income have workers laid-off, largest paper 235323/WY2007ProxyStatement.pdf. been the world's com- Geor- panies provided pay multi-million dollar gia-Pacific's $92 former CEO received a mil- packages to their CEOs. Louisiana-Pacific’s package lion when the multi-billion dollar ten-percent salary CEO received a increase acquired Georgia-Pacific Koch Industries package $3.6 and a worth million in 2006. largest privately 2005 to become the owned Louisiana-Pacific, Meeting Notice Annual company Emily United States. Thorn- (2007), Stockholders at available ton, CEOs, Merger Wk., Payouts Fat For Bus. http ://libraty. corporate-ir.net/library/73/730/ 34; Dec. Koch Industries Inc.: 237173/2006proxy.pdf. Interna- 73030/items/ Acquisition Georgia-Pacific $13.2 For Bil- Paper’s package tional CEO received worth J., 24, 2005, Completed, lion Is Wall St. Dec. Paper, $13.7 million in 2006. International at B2. Meeting Notice Annual Shareholders 50 Cooper, Daniel J. Angeles, Los Califor- nia, for the plaintiff-appellant. Andrew P. Bridges (argued), John C. Nishi, LLP, Winston & Strawn San Fran- cisco, California, for defendant-appellee Mastercard Incorporated. International Jansen, Mark T. Nancy Tompkins, L. Anthony Malutta, J. Townsend and Town- LLP, Francisco, send and Crew San Cali- fornia, for defendant-appellee Visa Inter- national Service Association. Nest, Robert A Van Michael H. Page, R. Slaughter, James Nest, Keker & Van LLP, Francisco, San California, for defen- dants-appellees Data Corp., First Cardser- International, Inc., vice and Humboldt Bank.

Before: REINHARDT, STEPHEN KOZINSKI, ALEX and MILAN D. SMITH, JR., Judges. Circuit Opinion by Judge SMITH, MILAN D. JR.; by Dissent Judge KOZINSKI. SMITH, JR., MILAN D. Circuit Judge: (Perfect 10) Perfect Inc. sued Visa International Association, Service Master- Card Inc., International and several affili- ated banks and processing data services (collectively, Defendants), alleging sec- ondary liability under federal copyright and trademark liability law and under Cal- ifornia statutory and common law. It sued because process Defendants continue to Howard E. King (argued) and Stephen payments card to websites that in- Rothschild, D. King, Holmes, Paterno & fringe Perfect 10’s intellectual property Berliner, LLP, Angeles, California, Los rights being after notified Perfect 10 the plaintiff-appellant. infringement by those websites. The dis- Jeffrey Mausner, Berman, N. Mausner trict court dismissed all causes of action Resser, & Angeles, California, Los for the under Federal Rule of Civil Procedure plaintiff-appellant. 12(b)(6) for failure to upon state claim

793 for the reason FDC’s stated account. affirm the We granted. can be relief which of Per- percentage termination court. of the district the decision disputed later who 10’s customers fect PROCEEDINGS (the AND PRIOR charge- FACTS to them charges attributed rate) limits. exceeded contractual back magazine publishes 10 Perfect chargeback rates claims these Perfect subscrip- operates “PERFECT10” substantially inflated temporarily were both www.perfectlO.com., tion website “victim Perfect was images copyrighted tasteful “feature investigat- subsequently who were hackers mod- natural most beautiful the world’s Appellant’s Service.” ed Secret 1. Per- Brief at Opening Appellant’s els.” Perfect 10 claims at 13. Brief Opening photo- in the copyrights claims fect 10 and was also aware of this FDC was and on magazine in its published graphs rate chargeback 10’s that Perfеct aware website, registration federal its once limits association dropped within blanket 10” trademark “PERFECT ceased, that FDC never- but hacking models many of the rights publicity industry- Perfect on an placed theless Perfect photographs. in the appearing accounts. list” of terminated “black wide based websites that numerous alleges proprie- stolen its countries several suit against 10 filed them, illegally altered tary images, contributory alleging January online. for sale them offered in- trademark copyright and and vicarious violations Califor- well as fringement as infringers suing the direct Instead competition unfair proscribing nia laws Defendants, fi- case, sued Perfect 10 of the stat- advertising, violation and false certain process institutions nancial publicity, law of utory and common in- allegedly to the payments card pro- with libel, interference and intentional Master- Visa and The fringing websites. advantage. Defendants economic spective member of are associations entities Card un- complaint the initial moved to dismiss consumers, to cards issue credit banks 12(b)(6). court The district FRCP der mer- to payments automatically process motion, dismissing the libel the granted cards, accept their authorized to chants with claims intentional interference and to the interested provide information and the leave to amend granting but prejudice resulting the necessary to settle parties In first amended claims. its remaining collect Defendants credits. and debits essentially repeated 10 Perfect complaint, in transac- these their services fees for original complaint in its allegations the De- sent alleges that it 10 tions. Perfect of surviving causes action concerning the iden- specifically repeated notices fendants to dismiss again moved and Defendants informing and websites tifying 12(b)(6). court district under FRCP their consumers of that some in motion second the Defendants’ granted in- purchase to cards use their ac- remaining causes of all full, dismissing receiv- admit images. Defendants fringing appealed 10 Perfect prejudice. tion no notices, they took but these some of ing court. to this after re- notices response action in

ceiving them. JURISDICTION it for- alleges separately 10 jurisdic- original court had The district defen- account with a merchant merly had and trademark cоpyright (FDC) tion over the but Corporation Data dant First §§ 1331 to 28 U.S.C. pursuant claims FDC 2001 terminated Spring in 794 jurisdiction de supplemental over We review novo the district interpretation court’s of state law. Rodri pursuant state law claims

the related guez, 314 F.3d at 983. § appellate 1367. This court has U.S.C. §

jurisdiction pursuant to 28 U.S.C. DISCUSSION SECONDARY LIABILITY UNDER OF REVIEW STANDARDS FEDERAL COPYRIGHT AND review de novo the district We court’s TRADEMARK LAW claim upon dismissal failure state a Secondary Liability Copyright A. granted which relief can pursuant Infringement 12(b)(6). Rodriguez Panayiotou, v. FRCP alleges Perfect 10 that numerous web (9th Cir.2002). ap- On sites several based countries—and their allegations peal, “we take all paying directly customers—have infringed complaint material fact stated as rights Act, its under Copyright light true construe them in the most suit, § U.S.C. et seq.1 present nonmoving party. favorable A com- however, Defendants, Perfect 10 has sued plaint should be dismissed unless it infringers, claiming the direct contrib beyond appears plaintiff doubt that can utory copyright infringement and vicarious prove set of support facts his claim process because Defendants credit card entitle him relief.” would Id. charges incurred by acquire customers to (internal omitted). citations infringing images. We evaluate Perfect 10’s claims with an Although plaintiffs allegations awareness credit cards serve as the true, generally taken the court need primary engine of electronic commerce conclusory not accept allegations of law or Congress and that has determined it to be inferences, unwarranted and dismissal is States—(1) “policy of the United required if the facts are insufficient to promote the continued development support a claim. cognizable City Arca Internet computer interactive dia Agency, v. U.S. Envtl. Prot. 411 F.3d services other interactive media [and] (9th Cir.2005); 1103, 1106 n. 3 see also (2) preserve the competitive vibrant and Gardner, 469, Pena v. 976 F.2d 471-72 free presently market exists for the (9th Cir.1992). may court also affirm Internet and other computer interactive ground on supported by the record services, unfettered or Federal State even if the district court did not consider 230(b)(1), (2).2 regulation.” §§ 47 U.S.C. the Legacy Sys., issue. Fields v. Health Contributory Copyright Infringe- 1. (9th 943, Cir.2005);

413 n. F.3d 958 13 Ecology ARC v. Dep’t United States the of Force, (9th 1092, Air 411 F.3d 1096 Cir. Contributory copyright infringe 2005). ment is a form of secondary liability with complaint Congress While Perfect expressed 10's does clear- similar sentiments ly specify rights Digital which of Perfect Copy- 10's arе when it enacted the Millennium 512, being infringed, (DMCA), appears § that at least four Act 17 U.S.C. one of the rights potentially reproduc- such purposes issue: stated of which was to “facilitate the (17 106(1)); § tion development U.S.C. derivative expansion works robust and worldwide (17 106(2)); commerce, communications, § copies U.S.C. of distribution of electronic re- (17 106(3)); search, (17 § public display development, U.S.C. and education in the 106(5)). 105-190, § digital age.” (1998). U.S.C. Rep. S. at 1-2

795 enterprise infringement knowingly if actor concepts in of rect the roots the tort-law steps substantially See liability imputed intent. Fonovi takes certain Auction, Inc., sa, F.3d in Cherry infringement.” Inc. v. 76 to result such direct Am- (9th 10, azon.com, 259, Cir.1996); Inc. v. 264 F.3d at 727. 487 Perfect (9th Amazon.com, al., et F.3d 701 Inc. 487 We understand these several crite Cir.2007). the court and United This non-contradictory ria to be variations on Court) (Supreme Court Supreme States test, i.e., same that one the basic contribu- announced formulations various (1) torily infringes knowledge when he has liability. test for such We the same basic (2) (a) infringement of another’s either a is a have found that defendant contribu (b) materially to or induces contributes (1) knowledge if it tory infringer has isolation, infringement. in Viewed (2) activity, party’s infringing third language of the tests quite described is “induces, causes, materially contributes broad, but when one reviews details of Rob conduct.” Ellison v. the actual “eases and controversies” before Cir.2004) (9th ertson, 1072, 357 F.3d 1076 in the relevant court each of the test- Corp. v. (citing Publ’g Gershwin Columbia defining holdings and the actual cases Inc., 1159, 443 F.2d Mgmt., Artists cases, those it is clear that factual (2d Cir.1971)). context, In an Internet we circumstances this case are not analo liability contributory have found when To gous. find that Defendants’ activities personal conduct “engages defendant scope fall within the of such tests would encourages infringe or assists require inappropriate expan radical Records, Napster, A M Inc. v. ment.” & existing secondary principles sion (9th Cir.2001) Inc., 1004, liability public policy and would violate the omitted). (internal citations In Metro- United States. Grokster, Studios, Goldwyn-Mayer Inc. v. Ltd., adopted Supreme Court Knowledge Infringing a. patent concept law the of “inducement” Activity infringes and found that contribu- “[o]ne by intentionally inducing or Because find Perfect 10 has not torily encour we ‍​​‌‌‌​​‌​‌‌​‌‌​‌‌​​​‌​‌‌​‌​​​‌‌‌​​‌​​‌‌‌​‌‌‌​‌‌‌‍913, infringement.” 545 facts to establish that De- aging pled direct U.S. sufficient materially contribute to 125 S.Ct. L.Ed.2d fendants induce (2005).3 recently, infringing activity, in a also the Perfect 10’s contrib- Most case fails brought utory copyright we found that “an claim may contributorily actor liable and we need not address Defendants’ [under activity.4 intentionally encouraging knowledge di- ] Grokster Grokster, concurring "product” card opinion her in Jus- not claim that the of credit In incapable com- services is of substantial and Ginsburg another of tice identified strand noninfringing mercially significant uses. liability Supreme contributory Court’s in i.e., jurisprudence, liability based on "distrib- anomaly regarding an exists 4. We note that uting infringe a use product distributees secondary copyright concept notice product copyrights, capable if the 12(b)(6) infringement cases outside a FRCP ‘commercially significant’ 'substantia! or no- Congress the issue of context. addressed Grokster, noninfringing uses.” 545 U.S. DMCA, grants tice in the safe harbor 942, Sony (citing Corp. 125 S.Ct. 2764 against liability to Internet service certain Studios, Inc., City 464 America v. Universal knowledge actual providers, even those with 774, 442, 104 78 L.Ed.2d 574 U.S. S.Ct. infringement, they if not received stat- (1984)). assuming offer a Even 10 v. utorily-compliant notice. See Perfect "product” purposes, does for these Perfect 10 (9th Cir.2007), LLC, CCBill 481 F.3d 751 796 Contribution,

b. Material Inducement, in this case they

or Causation have no direct connection to that infringe- Here, ment. the infringement rests on To state a claim of contributory infringe- the reproduction, alteration, display and ment, Perfect 10 must allege facts showing distribution of Perfect 10’s images over induce, cause, that Defendants or material- the Internet. Perfect 10 has not alleged ly contribute to the infringing conduct. See, infringing material Ellison, passes over e.g., 357 F.3d at 1076. Three Defendants’ key cases found networks defendants contributorily through their payment liable Fonovisa, processing sys- under this standard: 76 tems, 259; or that systems Defendants’ Napster, 1004; 239 F.3d Grokster, used to alter display 545 U.S. 125 S.Ct. the infringing 162 im- Fonovisa, ages. Fonovisa, L.Ed.2d In In we held a swap infringing materi- meet operator al contributorily physically was liable for the located and traded at sale of pirated works at swap meet. defendant’s Here, market. it is not. In Napster, operator we held the Nor an systems Defendants’ used to lo- system electronic file sharing when liable cate the infringing images. The search users of system employed it to ex- engines in Amazon.com provided links to change quantities massive of copyrighted specific infringing images, and the ser- Grokster, music. the Supreme Court in Napster vices and Grokster allowed liability found for the substantially similar users to locate and obtain infringing ma- act of distributing software that enabled Here, contrast, terial. the services exchange of copyrighted music on peer- provided by the credit companies card do to-peer, rather than a centralized basis.5 help locate and are not used to dis- argues by continuing tribute the infringing images. While Per- process payments credit card in- fect 10 alleged has that Defendants make fringing websites despite having knowl- it easier for websites profit from this edge of ongoing infringement, Defendants infringing activity, the issue here is re- induce, enable and contribute to in- production, alteration, display and distri- fringing activity in way the same the de- bution, which can occur payment. without Fonovisa, fendants did in Napster and Even if infringing images paid were not Grokster. disagree. We for, there would still be infringement. See Napster, F.3d at (Napster

1. Material Contribution infringed users right by distribution The credit companies card cannot uploading file names to the search index be said to materially contribute to the for others to despite copy, the fact that superceded, (9th amended material, 488 F.3d fringing would benefit from no safe Cir.2007); 512(c)(3). § 17 U.S.C. Because recognize harbor. We that the DMCA was Defendants are providers” not “service within displace not intended to the development of DMCA, scope eligible are not secondary courts; rather, liability in the we result, safe these harbors. The under Per- simply take note anomalous result Per- theories, fect 10's would therefore be that a fect seeks. service provider knowledge with actual of in- fringement and the ability actual to remove 5. Because the primari- Grokster court focused material, infringing but which has not ly on an theory “inducement” rather than a received a statutorily compliant notice, is en- "material theory, contribution” our primary titled to a safe liability, harbor while discussion of Grokster is located below in the credit companies card knowledge with actual "inducement” opinion. section of this

but without the ability actual to remove in- materially to contribute may Google chain: transac- in the changed hands money easy it and making fast infringement tion). and distribute to locatе parties for third consistent fully analysis is Our material, Defendants whereas infringing v. in decision recent court’s Perfect prof- to be infringement for it easier make “Goo- that Amazon.com, found we where increase financial itable, tends to which if it contributorily liable be held gle could turn in tends infringe, to incentives infringing Perfect that knowledge had infringement.6 to increase its search en- using available were images pre- to measures simple take could gine, reading our disagrees with dissent The copy- 10’s to Perfect damage further vent with wish- charges us and of Amazon.com to take such works, and failed righted 811, and with at thinking, dissent ful dissent at 729. The steps.” distinc- ephemeral “drawing] a series applies squarely this statement claims respectfully We tions,” at 825. dissent “payment just substitute we if Defendants our construction and assert disagree at Dissent engine.” for “search systems” law is and case statutes relevant en- if search only true is But this existing federal consistent with completely equiva- systems are payment and gines commer- grounded both law, firmly is they are and not. purposes, these lents conforms to reality and cial and technical Google’s is that distinction salient The the United States. policy public in the distribu- assists itself engine search might image an to locate Helping users users, content Internet infringing tion of in- to download assist users substantially systems do payment while Defendants’ payments processing but images, fringing noted that court The not. Amazon.com for im- pay couldn’t users not. If does substantially assists websites “Google cards, could infringement credit ages with copies infringing distribute large on a scale continue worldwide assists a market worldwide available. are funding mechanisms viable ma- infringing access of users audience decide might a website example, For provide do not Defendants Id. terials.” images some download users allow way assist or in no They a service. such from advertis- profits its and to make free infringing to locate users Internet enable payment develop other might it ing, or it. not distribute material, they do on the depend do not mechanisms infringement make do, alleged, They case, In either companies.7 card generally are and people profitable, more copy- 10’s Perfect use of unlicensed activity in an to engage inclined more infringe- still would images However, righted financially profitable. it is when acknowledge that Defendants’ ment.8 We in the causal step is an additional there only Google is not recognize that 8.We infra, the dissent’s note discussed 6. As users, and to Internet engine available “an essen- processing is search claims Google to process,” necessarily dissent infringement need step in users do tial directly in- “Defendants we and that distinction images. at infringing locate where every infringing transaction however, Google; volved draw, specific to card,” dissent by credit payment is made payment ser- services location between that the believes suggests the dissent lead Internet services location Because vices. directly when images often directly to users payments. process these the service website of display them itself, are more services we find that location fully vicarious in the more discussed As indeed, more section, important more infra, 10’s factu- essential — contrary. allegations are not to al payment systems make it easier for such terprise of infringement and observed that an infringement profitable, to be and that “it would be difficult the infringing they therefore have the effect of increas- activity place to take in the quan- massive ing such infringement, but because in- alleged tities without the support services fringement of Perfect copyrights 10’s provided can by the swap meet. These ser- occur using without payment include, Defendants’ among vices things, pro- system, payment we hold that processing vision space, utilities, of parking, advertis- by the as alleged ing, in Perfect plumbing, and customers.” 76 F.3d at 10’s First Complaint Amended does not 264. swap But the meet owner did more constitute a “material contribution” under to encourage, the enterprise. In contributory test for infringement of County Fresno Sheriff raided the swap copyrights.9 38,000 meet and seized counterfeit record- ings. Id. at 261. The Sheriff sent a letter holding fully Our is also consistent with to the swap operator meet the following supported by this previous court’s year notifying it that counterfeit sales con- holdings in Napster. Fonovisa and While and reminding tinued it had agreed there are some limited between similarities provide the Sheriff with identifying in- the factual in scenarios Nap- Fonovisa and vendor, formation from each but had failed ster case, and the facts this the differ- to do Id. so. Thе Fonovisa court found ences substantial, those scenarios are liability because the swap operator meet and, view, in our dispositive. Fonovisa, In knowingly provided the “site and facilities” we held a flea proprietor market liable as a for the infringing activity. Id. at 264. contributory infringer provided when it facilities for and benefitted from the sale In Napster, this court found the design- of pirated works. 76 F.3d 259. The court er and distributor of a software program found that primary infringers and the liable for contributory infringement. 239 swap meet engaged were in a mutual en- F.3d Napster awas file-sharing "material” —to than posed expansion of existing secondary liabili- law, services are. ty perhaps the companies credit card would soon purchases decline to finance legally all, risky. They, more after dissenting colleague Our as assures us we moved Adam Smith’s “invisible hand” would jeopardize Internet commerce set next happened, merchants. If that finding Defendants liable because he has "ev- rights would First Amendment of consumers ery simply confidence" this court will trampled? Would itself be ad- providers find that other of essential services impacted versely credit card com- may infringement, contribute to but not mate- pany would want to take a chance on becom- rially so. at 816. We Dissent take little com- ing secondarily liable? fort in predicate his assurances because the colleague's our optimistic view judi- of future similarly We take little comfort in the dis- cial of his new refinement world of secondary sent’s resurrection of the "dance-hall-own- liability large is a expensive number of er/absentee-landlord'’ as a source cases pieces litigation drawn-out may, principled distinction in area. this Dissent at not, may Meanwhile, be filed. ever what 815-16. Those tests developed were for a stop would competitor a of a web-site from world, and, brick-and-mortar Napster as the sending bogus a compa- notices to credit card implicitly Grolcster courts recognized by ny claiming infringement by competitor its them, paying little attention to do not hope putting competitor a out of busi- lend themselves well application in an elec- ness, or, least, requiring spend great it to tronic commerce context. deciding money deal of cаse, to clear its name? Threatened arewe well-advised follow the lead of significant potential secondary liability Supreme Court's and our own court's on variety pro- fronts under the confronting dissent's cases online commerce issues.

799 of part this was only because significant of non-in- which, capable while program market for and environment engineered the providing use, expressly was fringing music sales to thrive. pirated recording of exchange easy counterfeit the enable 239 Napster, used. widely See so and was contrast, Defendants, do no such in au- document (quoting n. 5 F.3d at alleged has that Perfect thing. While men- which co-founder by Napster thored its infringe images that locate easy it of ignorant to remain “the need tioned sys- payment the Defendants’ copyrights, ‘since and IP addresses real names users’ 10’s Perfect im- cause this. do not tems ”). music’ pirated exchanging they are of the because easy to locate ages are standard, Napster the Citing the Fonovisa Internet —the website of the very nature materially con- Napster found that court al- easy allowing for the format, software infringement direct users’ to the tributes connections high-speed images, of teration facili- “site and the providing knowingly by high-res- of transfer rapid allowing for 239 F.3d infringement. that ties” for files, most im- perhaps and image olution engines that search powerful portantly, analogy to Fonovisa an Seeking draw images display those and aggregate can Perfect extension, Napster, and, by manner, without and efficient a useful materially contrib- that Defendants pleads De- astounding speed. charge, and with offering ser- infringement to the ute any these func- no role play fendants larger on a happen it to allow vices that tions. possible. would otherwise than scale by arguing otherwise 10 asserts Perfect in Fo- meet swap Specifically, of the conception extremely broad for an environment a commercial created novisa bears and facilities” term “site in- frequency allowed the holdings in actual relationship to increase, Napster and fringement in Fo- decided and controversies” in- “cases frequency increased program literally, Per- Taken Napster. and novisa easy, it by making fringement any include theory appears made fect 10’s the Defendants argues component related intangible that allows system tangible or payment available infringing ma- in which profitable, to be infringement transaction third-party than But Fonovisa widespread and sold. bought more and, consequently, terial fails. lend them- analogy require This be. do not might Napster and otherwise The actual a construction. to such selves operator Fonovisa swap meet The in- location, distribution display, Napster the administrators occurs in this case images fringing the level increased programs Grokster display, and trans- organize, websites centralized providing and wire- the wires information over mit virtual, where physical or whether place, Inter- up make instruments less sorted, collected, could be works “site” of are the The websites net. sold, exchanged.10 found, bought, payment Defendants’ infringement, lots, plumbing of parking provision create, op- do not networks. was in Fonovisa accoutrements and other systems payment that Defendants’ college contend fact, every virtually interested as way, infringement in this engineered for were program’s creator knew—and student Napster’s radically expand we decline purpose sole expressly admitted-the contribution” "material cursory treatment of a forum provide program was to Napster system that card a credit to cover Napster, infringement. See easy copyright designed. was not so 10 does n. 5. Perfect at 1020 239 F.3d erate, advertise, or promote otherwise passes over Defendants’ payment net- They these websites. do not operate the works or through payment process- they servers on which reside. ing systems, Unlike the or that Defendants designed (and Grokster) Napster defendants, they promoted or their payment systems as a do provide users the tools to locate means to infringe. While Perfect 10 has material, any nor does infring- alleged that Defendants make it easier ing material ever reside on pass for profit websites to from this infringing through any network computer Defen- activity, the infringement stems from the dants operate.11 Defendants merely pro- failure to distribute, obtain license to vide a payment, method of not a “site” or not the processing of payments. “facility” of infringement. Any conception of “site and facilities” thаt encompasses Inducement would also Defendants include a number Grokster, the Supreme Court of peripherally-involved parties, third such applied patent law concept “induce as computer display companies, storage ment” to a claim of contributory infringe companies, device and software companies against a file-sharing program. 545 that make the necessary software to alter U.S. 125 S.Ct. 162 L.Ed.2d 781. pictures view the and even utility The court found that “one who distributes companies provide electricity to the a device with object of promoting its

Internet. use to infringe copyright, as shown by

Perfect 10 side-step seeks to this reali- expression clear or other affirmative steps ty by alleging that Defendants are still taken to foster infringement, is liable for contributory infringers the resulting acts of infringement by third could process refuse to payments to parties.” 936-37, Id. at 125 S.Ct. 2764. infringing websites and thereby under- Perfect 10 claims that Grokster is analo mine their viability.12 commercial Even gous because Defendants induce customers though we must take this factual allega- to use their purchase cards to goods and true, tion as that Defendants services, have the and are therefore guilty of specif power to undermine the ically commercial via- inducing infringement if the cards bility of infringement does not demon- purchase used to images from sites strate materially Defendants that have content stolen from Perfect 10. contribute to that infringement. pre- As This mistaken. Because Perfect 10 al viously noted, the direct leges no steps “affirmative taken foster here reproduction, is the alteration, dis- infringement” and no facts suggesting that play and distribution of Perfect 10’s im- promoted Defendants their payment sys ages over the Internet. Perfect 10 has tem as a to infringe, means its claim is not alleged premised material on a fundamental misreading of Moreover, processing if the payment right. bution even gone Not Perfect 10 has so an infringing transaction were as central to allege theory far here—Perfect 10 the infringement as the dissent believes it to undoubtedly would learn, quite surprised to see, e.g., dissent (payment process- at 811 years be— after litigation attempting to ing is essential step "an in the infringement expand the scope of secondary liability, that process”), ("Defendants dissent аt 815 infringers Defendants are direct after all. directly every involved in infringing transac- tion where is made allegation 12. This is considered below under card”) why difficult to see infringement, —it vicarious but we also address it would be infringers not be direct of the distri- here terms contributory infringement. affir- that Defendants it does follow concept of render that would Grokster' that their product each matively promote meaningless. virtually “inducement” The soft- purchase. used to cards are that the announced court The Grokster and Grokster Napster systems ware provid- liability is inducement standard disseminated, pro- engineered, were promoting object of “with a service ing of facili- purpose explicitly for moted Id. “[M]ere copyright.” infringe its use and re- music copyrighted of tating piracy or actual potential infringing of knowledge to such music sales of legitimate ducing enough here not be uses would and Grokster Napster Most that extent. liability.” Id. to subject defendant] [a to used primarily this and understood users Instead, induce- S.Ct. at 125 mu- copyrighted purloin systems those to cul- liability purposeful, “premises ex- Further, operators Grokster sic. conduct, and thus and expression pable users of targeted then-current plicitly legitimate compromise nothing to does ads by sending them Napster program having discourage innovation or commerce 925-26, at Id. program. OpenNap for its Moreover, to estab- Id. promise.” a lawful contrast, 10 Perfect In 125 S.Ct. crucial to it is liability, lish inducement created that allege Defendants does not “communi- that the distributors establish as a systems payment their promote or ... to their message inducing cated an simply 10 laws. Perfect to break means is an users,” example of the classic promote generally that alleges Defendants that broad- solicitation or “advertisement systems but payment and their cards oth- designed to stimulate message casts or “affir- expression” to no “clear points The Grok- Id. violations.” ers commit any specific intent mative acts” with “inducement” summarized ster court infringement. foster rule as follows: good sum, an article where this recognized court Amazon.com The there is infringement, but nothing else fully a matter applied it in and distinction in its unli- public interest legitimate no in this case. analysis our consistent injus- there is availability, and censed bi did not court the Amazon.com While an intent imputing or presuming tice in liability contributory of analysis furcate its the doctrine Conversely, infringe. and liability “material contribution” into selling conduct equivocal absolves recognize it did liability, “inducement” lawful as well an item with substantial liability “may predi contributory liability to in- uses, limits unlawful (or induc encouraging actively cated on than the acute fault stances more through specific acts.” ing) that some one’s understanding mere (quoting 726 Amazon.com, at It leaves misused. will be products 942, 125 S.Ct. Grokster, at 545 U.S. vig- and a innovation breathing room for It also found J., concurring)). (Ginsburg, orous commerce. eontributorily held could be Google (internal 932-33, 125 S.Ct. spe at knowledge 545 U.S. if it has “actual liable omitted). marks quotation using citations available infringing material cific simple measures can take system, and any of its alleged 10 has not not. damage,” but does prevent-further any of met or are these standards (internal quotation citations Id. here. present these considerations omitted). is read test While course, marks do, market con “material a test for naturally as goods more pay for as a means credit cards “inducement,” a test for than as But tribution” services, and elsewhere. online under an “inducement” analysis pies Defen- enterprise liability and imputed dants not within scope. intent, its As dis- infringement’s vicarious roots lie in above, cussed Perfect 10 has alleged agency principles of respondeat superi any “specific acts” encourage intended to Fonovisa, or. See 76 F.3d at 261-62. To infringement. moreover, induce And state a claim for vicarious copyright in distinguishable Defendants are under fringement, plaintiff must allege that the because, test (1) Amazon.com unlike Google, defendant has ability material is not “available supervise13 ‍​​‌‌‌​​‌​‌‌​‌‌​‌‌​​​‌​‌‌​‌​​​‌‌‌​​‌​​‌‌‌​‌‌‌​‌‌‌‍using (2) the infringing conduct and system” [their] processing. a direct financial interest in the infringing system Id. That does not “facilitate activity. Ellison, access 1078; 357 F.3d at Nap websites,” id.; infringers ster, do (citations not use omitted). 239 F.3d at 1022 alter, to copy, distribute display infring- Supreme Court recently has offered material; ing (in dictum) and consumers do not use it an alternate formulation of the locate, view or download the infringing test: “One ... infringes vicariously by Rather, images. parties all involved sim- profiting from direct infringement while ply use system Defendants’ process declining to exercise a right to stop оr payments for infringing material. Grokster, limit it.” 545 U.S. at (internal omitted). S.Ct. 2764 citations Finally, we must take allega- as true the Perfect alleges that Defendants have tions that Defendants lend their names and ability to control the content and logos to the offending websites and of the infringing websites by refusing to continue to allow their cards to be used to process credit card payments to the web purchase infringing images despite actual sites, enforcing their own and regula rules knowledge of infringement per- —and tions, or both. We hold that Defendants’ haps bending even their association rules conduct alleged Perfect 10’s first to do so. But not, we do not and need amended complaint fails to state a claim basis, this factual take as true that Defen- for vicarious copyright infringement. dants “induce” buy pirated consumers to content with their cards. “Inducement” is Right a. Ability and Supervise legal determination, a and may dismissal Infringing Activity not be avoided characterizing legal a determination as a factual one. We must In join order to a pay Defendant’s determine whether the pled facts consti- network, ment merchants and member tute a expression” “clear of a specific in- banks agree must to follow that Defen tent and, infringement, foster for the dant’s regulations. rules and rules, These noted, reasons above we hold do among things, prohibit member not. banks from providing services to mer chants engaging in certain illegal activities Copyright Infringement Vicarious require the members and member infringement

Vicarious is a con banks to investigate suspected merchants cept to, from, related but distinct contribu of engaging illegal in such activity and to tory infringement. contributory Whereas terminate participation pay infringement is based on prinei- tort-law if network certain illegal activity is essentially Fonovisa "supervision” viewed essentially viewed it Napster's in terms of in this context in swap terms meet ability police users, activities of its operator’s ability to control the activities of F.3d at 1023. vendors, 76 F.3d at Napster equally applicable reasoning is Id. This that certain alleged 10 has Perfect found. like case. Just in this copy- Defendants 10’s Perfect infringing websites take cer- likely sent notices could Defendants Google, Perfect rights to Defendants. the indirect effect infringement may have alleged steрs that this tain adequately 10 has In- activity Perfect on the Accordingly, infringing reducing 10’s Perfect (1) infringement However, Google pled that neither large. ternet (2) Defendants occurring, was copyrights directly ability to has nor Defendants (3) on infringement, aware were ability mere activity, and the control stopped basis, could Defendants “carrot” does a financial to withdraw to the payments card processing ability to “right “stick” create allegations are These websites. re- that vicarious control” vicari- however, to establish not, sufficient liability finding A vicarious quires. all reason- even liability because ous by the here, the theories advocated under favor, 10’s in Perfect drawn able inferences finding dissent, require would also sup- cannot of fact allegations 10’s Perfect infringe- vicariously liable Google is have the finding that port create, and we need conflict ment —a control the ability to right and not take. step we do radical activity. court’s deci- that this 10 argues analogous to the closely reasoning contrary compels a result. Napster sion court case, held the Amazon.com present of a found likelihood court Napster The vicariously liable for was not Google that “had Napster liability because vicarious its search that infringement third-party system its ability police to and right the holding, the court In so engine facilitates. right prevent to that to and exercise failed control its ability to Google’s found that material.” copyrighted exchange of results, webpages index, and search own Napster program at 1023. to control 239 F.3d Google right give does digital exchange of for the even a forum parties third of created acts infringing administra- Google to program allow and the would files ability music though that degree. certain users ability acts to some to block infringing affect those tors had More- Amazon.com, upload at 730-32. forum to accessing from the Am- importantly, over, even more pled and files. As such download azon, liabili- a vicarious rejected system court com provide also 10, Defendants with Google’s policies on ty claim based infringement of the business allows it advertisers, which state sponsored than larger scale operate to profit and termi- to monitor right “the reserves have the and Defendants might, otherwise that violate entities partnerships nate with pay- to access deny users ability (altera- Id. at copyright[s].” others’ system. ment found that The court original). tion pro- Napster fails. The argument This an AdSense terminate right to Google’s its hence with—and involvement gram’s Google give does partnership infringement over—the power “policing” direct stop right directly in- intimate and more was much infringing An websites. third-party pay- Defendants’ it than with tertwined to re- can continue third-party website provided Napster are. systems in- its and distribute display, produce, easy tools enable with users images af- Perfect 10 copies of fringing the actual of distribution and reproduction AdSense in the participation ter its readily search and to infringing content has ended. program identify out infringing and material. De- cease illegal includ- activity presumably — payment systems ing Nap- copyright infringement fendants’ do not. a condition —as ability continuing right ster also had the and their to block to receive credit payments card program user access to its the relevant thereby Defen- dant deprive argues entities. Perfect 10 particular users of access to their these contractual effectively terms give forum use their location and distri- Defendants contractual control over the bution tools. Defendants can block access content websites, merchants’ to their payment system, but cannot that contractual control over content Internet, themselves block access sufficient to establish the “right abili- websites, particular or to search en- ty” to control that purposes content for gines enabling the location such web- liability. vicarious In the sense that eco- sites. Defendants are involved nomic considerations can influence behav- payment resulting from violations ior, these contractual rules and regulations right, distribution but have no direct role give do Defendants some measure of con- reproduction, alteration, the actual trol over the offending websites since it is distribution images.14 reasonable to believe that fear losing They away cannot take the tools the of- access to credit card payment processing fending reproduce, alter, websites use to services be a would sufficient incentive for distribute the images over at least some operators website comply the Internet. They can only away take with a content-based suggestion from De- the means the currently websites use to fendants. But the ability to exert financial sell them.15 pressure give does not Defendants the Perfect 10 offers counter-ar two right or ability to control the actual in- guments. Perfect 10 first claims that De fringing activity at issue in this case. De- fendants’ regulations rules and permit fendants have no right16 absolute stop to them require to member merchants to that activity they cannot stop websites — 14. analysis The same of Defendants' role in none infringing images of the resides on or any violation right of the distribution under passes through present sys- Defendants’ own 106(3), § 17 U.S.C. discussed in note su- any systems tems or over which Defendants pra, equally applicable here. While the control, exercise direct Defendants have no Napster program operators allowed its to ability actually to remove infringing material block users from violation of the distribution from directly the Internet or block its distri- right, “policing'' power Defendants' is limited distinguishes bution. This credit compa- card refusing to process payments to resulting Napster, nies from which could block access from such violations and does not extend to to the easy reproduction tools needed for the directly stopping the violations themselves. and infringing distribution of the actual con- tent. 15. The conclusion that oper the Defendants scope ate outside the Napster of the rule is not, 16.We do as the suggests, dissent hold bolstered though further consideration — right stop an absolute infringe- to persuasive the authority only this court’s —of prerequisite ment is a for opinion Studios, liability. vicarious in Metro-Goldwyn-Mayer Rather, Ltd., Dissent (9th at 818-19. Inc. v. we Grokster consider the 380 F.3d 1154 Cir. 2004), inability directly Defendants' Supreme which the to Court control the vacated on grounds, infringing actual third-party 545 U.S. activities of 125 S.Ct. web- (2005). alteration, Grokster, reproduction, L.Ed.2d 781 we display, and sites— distribution over the Internet, vicariously found the defendants not liable in not over Defen- part because could not payment systems dants' block individual evidence that —as copyrighted users or remove they, material from Google, like right much lack the and Similarly, network. Id. at 1165. ability because to control those activities. it, do not Defendants affect and just not distributing altering, or reproducing, from ability. right or have this Rather, card the credit images. infringing Google, which to reason- analogous heavily on the 10 relies companies Perfect support copy- Napster vicarious of Fonovisa and ing liable for held was we is mis- that reliance but argument, this en- search though even right in Fonovi- swap operator meet placed. cause a website effectively could gines Napster operator the software and sa their search removing it from disappear individual right to remove had the both to do so. right results, reserve infringe- very place from the infringers companies card the credit Google, Like Defendants, like the happening. ment was third-party web- of the stop “cannot Amazon.com, have no such defendants displaying, reproducing, sites from discussed, Defendants already As right. of Perfect copies unauthorized distributing the offend- the software away take cannot con- images 10’s alter, distrib- copy, use to ing websites third-party web- place takes duct remove cannot infringing images, ute the Amazon.com, F.3d at sites.” Internet, and can- from the those websites process only refuse can the distribution block not themselves offending mer- to the card payments credit Defen- Internet. over the images those network, or chant within card process credit can refuse to dants if the merchant to do so they can threaten but images, those while payments request alter comply does not those number of would reduce refusal likely would option either of indi- sales, content. While the result reduction is an af- effect on rather than pressure indirect have some rect economic rights.17 of contractual length exercise greater firmative discuss activity, as we “stop or limit” of the Grokster analysis our infring- 10 also were argues ’ number of below, might any so accepting standard barred ing websites For actors. cards, number of im- by any would actions Defendants’ however, attach, selling adult an online website liability possible vicarious prof- operate at ability images compete must defendant allegation as take this we must it.18 infringement, While and control supervise that, free market hold, article of faith suggests, It is an dissent as the We do can exceptions, one subject certain limited pressure is to ability exert to finanсial that the reason, any anyone for deal with to sufficient refuse establish categorically insufficient to offending refusing deal with by to liability. recognize We and vicarious control for infringe- websites, could limit powerful, providers very these pressure is often that financial we reason that for this ment. precisely it is but law of vicarious liabili- expand the hesitate “Stolen 10 defines Specifically, Perfect pressure financial encompass the sort of ty to that rou- "websites ... Websites” as Content believes may dissent exert. The public [im- to the stolen tinely sale offer ability to “right and gravamen that the ¶2, (emphasis Compl. at ages],” First Am. ability” in- to limit "practical is the control” added), Content alleges that "Stolen and But this at 818-19. if fringement. Dissent knowledge without the cannot exist true, Websites protestations despite the dissent's were insti- participation of the financial many providers of direct contrary, there are to the transac- card process the credit infringe- that tutions limit who could essential services ¶ 2, material,” id. for such unlawful If tions refusing those services. by to offer procedural acknowledge at this that test, We do not mat- ability” it does is the "practical technicians, to all reasonable is entitled stage, Perfect 10 operators, network ter if software a inferences, to be we understand this but con- have a utility companies do not or even Content the "Stolen allegation that factual websites’ content. affect the right to tractual true, it still fails to state a claim by because it withholding services, their they could power conflates the to stop profiteering impair perhaps even destroy com- — —the right with the ability to control in- mercial viability of those business. But fringement. Perfect 10’s allegations do mean, that does not Grokster not that establish Defendants have the au- holds, means are all potentially thority to prevent theft or alteration liable as vicarious infringers. Even copyrighted images, infringing remove ma- though they have “right” to refuse terial from these prevent websites or its services, and hence the literal power distribution over Rather, the Internet. “stop or limit” the infringement, they, they merely state that this activ- Defendants, like not do exercise sufficient ity could not profitable without access control over the actual infringing activity to Defendants’ credit card sys- liability vicarious to attach. alleged tems. The infringement does turn on payment; it turns on the re- b. Obvious and Direct Financial production, alteration and distribution of Interest in the Infringing images, do, Defendants do not Activity and which occurs over networks Defen- dants do not control. Because Perfect 10 has failed show Supreme Defendants have right Court’s recent ability decision Grokster does control the alleged conduct, validity undermine the pled has not distinction. As we a held in viable claim Ama- of vicarious zon.com, 728-31, liability. 487 F.3d at Accordingly, Grokster does we not reach need not stand for proposition just the issue of direct financial interest. provided the services by a compa- ny help an infringing enterprise generate Secondary B. Liability for Trademark revenue, that company is necessarily vicar- Infringement iously liable infringement. for that Nu- The tests for secondary merous services trade required for the third infringement mark party even infringers referred to more difficult Perfect 10 satisfy than operate. required those addition to the find sec necessity of ondary creating copyright website, infringement. maintaining See Sony nu- Corp. merous v. City Studios, hardware Universal manufacturers pro- must 464 U.S. duce computer 439 n. on which S.Ct. website 78 L.Ed.2d sits; (1984); Fonovisa, physically engineer (not software must F.3d at 265 program ing create the copies and alters “trademark liability images; stolen technical support narrowly more com- circumscribed than copy panies must fix hardware infringement”). and software While the tests for problems; utility such companies provide infringement must are somewhat different the electricity that makes all in these the context, differ- trademark Perfect 10’s fac ent run, operations related etc. All tual allegations these in support of these claims services are essential to make the essentially busi- identical to alleged in those nesses viable, described they profit all to Perfect 10’s copyright claims, they fail some degree businesses, from those and to a state claim for similar reasons. could

Websites” not continue to exist allegation, web- that the websites completely would offering images sites sale online should or that by vanish these sites for services, defendants withdraw their not an all necessarily its forms would cease.

807 Martin, mark.” 194 tiffs Lоckheed Contributory Infringe- Trademark the “prod- 10 claims that at 984. Perfect ment “instrumentality” or at issue is uct” here contributory be To liable through network payment the card a must infringement, trademark defendant process payments Defendants (1) pri “intentionally induced” the have infringing Appellant’s Opening material. (2) infringe, to continued mary infringer above, length Brief at 39. As discussed in- to an supply infringing product to an network not the this instrument used infringer the fringer knowledge that with trademarks; infringe in- Perfect 10’s mislabeling particular product sup the fringement occurs without involvement Labs., Labs., Inc. v. plied. Inwood Ives systems. and their of Defendants Inc., 102 S.Ct. U.S. alleged not that Defendants Perfect has (1982). alleged the L.Ed.2d 606 When power infringing the mate- have remove a rather infringer supplies direct service directly stop rial these websites or product, prong than a under the second their distribution over the Internet. At test, the must the this court “consider most, by alleges defen Perfect 10 that Defendants of control exercised the extent third in party’s stop processing payments means of can choose to dant over websites, v. fringement.” Corp. might Lockheed Martin these and that this refusal Solutions, Inc., 980, 984 practical stopping Network 194 F.3d effect of have Cir.1999). attach, (9th liability This, reducing activity. For moni more, control and “[d]irect there must be without does constitute “direct instrumentality by Martin, toring of the used 194 F.3d control.” See Lockheed (“While party infringe plaintiffs third of a flea mar- at 985 landlord mark.” Id. reasonably might expected to moni- ket premises, the merchandise on his tor sold plead Perfect 10 failed to has reasonably cannot NSI be ex- [defendant] prong under of Inwood viable claim either Internet.”) (citation pected monitor Labs—and, extension, by Mar Lockheed omitted). First, showing it has facts pled tin. “intentionally in that Defendants induced” Infringe- Trademark 2. Vicarious fringement of Perfect 10’s mark. Perfect provid alleged 10 has Defendants are liability Vicarious for trademark ing support websites that are critical finding infringement requires “a using PERFECT 10 mark in a manner an appar have infringer defendant and likely public that is to cause the to believe authority partnership, ent or actual authorized Perfect to bind one another transactions allegations support Its factual joint ownership or parties third or exercise those it mаde in claim are identical to product.” control over support copyright of its claims. These Corp. Licensing Rock v. Concession Hard however, allegations, cite no affirmative Café Inc., vs., 1143, 1150 955 F.2d Ser third suggesting acts Cir.1992) (internal (7th omit quotations mark, much infringe 10’s parties Perfect ted), by Symantec Corp. v. CD them to less induce do so. followed Micro, Inc., 1265, 1275 F.Supp.2d Second, failed to has (D.Or.2003). allege con facts sufficient to show “[d]irect argues that Defendants instrumentality Perfect 10 monitoring trol and infringe liable follows: “Defendants and party plain- used a third are Stolen Content in symbiotic Websites are a properly court dismissed all these claims pursuant financial partnership with prejudice. which the websites operate their businesses accord-

ing to defendants’ rules A. California regulations and State Law Claims of Un- Competition defendants share the profits, transac- fair hand False Adver- tion tising Appellant’s transaction.” Opening Brief at 40. For the same reasons that Defendants do dispute Perfect relationship this does not “right establish 10’s claims that the websites themselves ability to control” for copyright pur- potentially violating California state poses, neither does it establish such a prohibiting common law compe unfair “symbiotic” relationship “joint owner- tition and advertising. false See Cal. Bus. ship or control” for purposes. trademark §§ & 17200, Prof.Code seq., et process payments Defendants to these seq. do, et however, Defendants argue

websites and collect their processing usual that Emery v. Visa International Service fees, nothing more. Association, 95 Cal.App.4th 116 Cal. Rptr.2d (2002), precludes liability for Perfect 10 argues further that “Defen- case, Defendants this both under sec acceptance dants’ of a charge binds the ondary liability and aiding and abetting Stolen Content Website to provide the in- theories. Defendants are correct on both fringing parties.” to third images Appel- counts. lant’s Opening Brief at 40. Even if legally relevant, allegation Perfect 10’s legally Emery, appellate California court incorrect. It is the websites’ contracts affirmed a grant summary judgment in with the consumers that bind the websites Visa, favor of finding that Visa did not provide the infringing images, not the exercise requisite control over mer websites’ relationship with Defendants.19 marketing chants foreign lottery tickets to The websites’ contracts with Defendants impose secondary liability under merely a means of settling the result- state’s competition unfair or false advertis ing debits and credits among the websites ing 959-964, laws. at Id. 116 Cal.Rptr.2d and the relevant consumers. We hold that 25. Emery found that prac an “unfair Perfect 10 fails state a claim for vicari- tices claim under section 17200 cannot be ous infringement. trademark predicated on vicarious liability.... A de liability

fendant’s must be based on his personal participation in the unlawful CALIFORNIA STATUTORY AND practices and unbridled control over the COMMON LAW CLAIMS practices that are found to violate section In addition to its federal copyright and 17200 or 17500.” Id. at 116 Cal. claims, trademark (internal pled Rptr.2d causes omitted). citations of action for unfair competition, false ad- Because played itself part “Visa no pre vertising, violation of the publicity, paring or sending any ‘statement’ that libel, and intentional interference with might eco- be construed as untrue or mislead nomic relations. We hold that the district ing under unfair practices business 19. The citation, dissent claims that contractual re- sence of it is difficult to know lationship infringers arises between the whether is true—this from a results deci- consumers process until pay- sion of the websites delay formation of the ment. Dissent 822-23. Even if true as a relationship, any requirement not from Defen- legal factual and given matter —and the ab- impose dants on the transaction.

809 95, 152 60 Cal.App.4th unfair credit cards.” at statutes,” liable for it could In 964, Cal.Rptr.2d Cal.Rptr.3d support, the court cit- at 116 competition. Id. claim also nec from a advertising specific company The ed statements false if al Visa in essarily “personally failed because “even he as- representative which logo, its trade use lowed merchants agent sured” an of the website that trademark, name, it would not be liable or company “did not have defendant duty no advertising. There is for false [illegal] of problem operation with of made investigate the truth statements lottery “stronger and had a stomach” site” omitted). (citations Em by others.” Id. than Per- payment processors. Id. 10’s claims dispositive of Perfect ery is no alleges fect similar conduct here— 10 secondarily liable that the Defendants merely card process Defendants and competition unfair under Cаlifornia payments. laws and the advertising district

false Aiding Abetting the B. and Websites’ them.20 properly court dismissed Right of Perfect 10’s of Violations attempt impact avoid the an Publicity argues appeal 10 Emery, Perfect 10 alleges Perfect Defendants abetting theories alleged aiding and aided abetted the websites’ and violations further, and liability complaints, in its rights acquired publicity, of Perfect 10’s improperly court dis district models, by assignment from its in violation claims under a criminal missed these civil § and common of Cal. Civil Code 3344 aiding abetting. and Perfect standard publicity. aiding law This claim on viable these 10 fails establish claim for the same reasons abetting fails only authority The of theories well. aiding abetting claims under support 10 in as the by Perfect such fered advertising. unfair false liability competition is which is now uncita- opinion an liability possible under in Schulz v. Neovi Data Even if such ble California: (Cal. 46 law—a Corporation, Cal.Rptr.3d proposition 28 California Cal.Rptr.3d Dist.2005), superceded provided 32 App.4th Perfect 10 has clear authori (Cal.2005), P.3d 475 cause 758, ty—Defendants lack sufficient control 117 Cal.Rptr.3d 56 154 infringing in the ac personal involvement transferred to, (Cal.2007), 998 152 Schulz, P.3d so See tivities to be liable. transferred (4th Cal.App.4th Cal.Rptr.3d 810; 93-94, Cal.Rptr.3d at Cal.App.4th 2007). Dist. Jun 962-63, Cal.App.4th 116 Cal. Emery, Rptr.2d 25. Furthermore, even under the standards superceding opin- in the Schulz announced Interference C. and Intentional Libel The

ion, would not be liable. Prospective Economic Advan- card company a credit Schulz court found tage facilitating for its role potentially liable Per court dismissed The district lottery that com- illegal online an fect claims of libel intentional beyond merely processing 10’s “went far pany personal participation in the Emery constitute argues does not banks 20. dissent only preclude activity, 10’s claims because the and for ‍​​‌‌‌​​‌​‌‌​‌‌​‌‌​​​‌​‌‌​‌​​​‌‌‌​​‌​​‌‌‌​‌‌‌​‌‌‌‍all the reasons Emery above, defendant was Visa International person- those banks discussed Association, Perfect 10 has Service whereas alteration, ally reproduction, involved who also sued the member merchant banks images. distribution process payments from mer- issue cards Rather, payments they merely process related chants. at 822-23. This distinction Dissent to those activities. only if the activities of member relevant interference prospective with 106(3). economic § ad- U.S.C. Plaintiff alleges that cer- vantage prejudice with multiple on tain parties third it refers to as the “Stolen grounds. We affirm on ground that Content unlawfully Websites” copy pro- its both are time-barred. Under California images tected and sell them to public, law, a libel must be claim filed within one using defendants’ systems as fi- year publication allegedly libelous nancial intermediaries. According to statement, 340(e), § Cal. Civ. Proc. plaintiff, and an the Stolen Content Websites intentional interference claim must be filed “maintain no physical presence in the years within two of the underlying harmful United States order to evade criminal act, § Cal. Civ. Proc. 339. Perfect 10 and civil liability their illegal conduct.” claims the ¶ same underlying wrongful act First Compl. Am. at 8 26. Plaintiff also as the basis for both placement claims: its claims that “Defendants do not enforce on the industry “black list” in Spring their own rules against [the] Stolen Con- However, of 2001. Perfect 10 failed to file tent Websites because Defendants do not suit January until 2004—well beyond the want to lose the substantial revenues and statute of applicable limitations to each profits they receive from the websites.” claim—and ¶ has failed to any possible show Id. at 10 35. Plaintiff has repeatedly exception under either statute. Those notified defendants that they are abetting claims time-barred. the sale of stolen by merchandise “know-

ingly providing crucial transactional sup- CONCLUSION port services the sale of millions of photos stolen and film clips worth billions We decline to create of the radical ¶ dollars,” id. at 1 but new avail. theories of liability by advocated Per- Frustrated in its effort to protect fect 10 and the dissent and we affirm the rights Congress it, given has plaintiff district turns court’s dismissal prejudice with to the federal courts for all redress. We causes of action in Perfect 10’s com- should not slam the courthouse door in plaint its for failure to state a claim upon face. which relief granted. can be

AFFIRMED. Accepting the truth of plaintiffs allega- tions, as we must on a dismiss, motion to KOZINSKI, Judge, Circuit dissenting the credit cards2 are easily liable for indi- for the most part:1 rect copyright infringement: They know- Federal gives law copyright owners the ingly provide a financial bridge between exclusive right copies “distribute buyers [of and sellers pirated works, en- their public works] ... to the by sale.” 17 abling them to consummate infringing join part I C of the Statutory "California or MasterCard to use respective pay Law Common Claims" section of the systems. Some of the other defendants opinion, dealing plaintiff's with pro- libel and clearing involved in these transactions. spective advantage economic claims. description For a works, system of how the Emery Ass’n, see v. Visa Int'l Serv. 95 Cal. dissent, 2. Throughout this I refer to defen- 952, 956, App.4th Cal.Rptr.2d (2002). collectively dants companies credit card or may It be well that some defendants credit doing, cards. In so adopting I am will be liability absolved of same simplifying assumptions majority. as the no direct contact with merchants consum I am aware that Visa and MasterCard don’t ers, but is a matter to sorted out after merchants; directly rather, deal mer- discovery. chants obtain card accounts from banks, which are in turn authorized Visa Websites, so he can do Content ev- Stolen making profit transactions, while can MasterCard, just as he using Visa participation active If such sale. ery images infringing find the indi- to Google to use amount not does conduct infringing colleagues engage My imagine place. to in the hard first it’s infringement, rect they claim thinking de- when to absolve straining in wishful By would.3 what in majority leaves itself assists engine liability, “Google’s the search fendants of to content infringing disarray. the distribution law in our payment users, Defendants’ while Internet Contributory Infringement users “[hjelping and that do not” systems that a defendant held long substantially as image might We locate an to if it infringement contributory images, liable for infringing to download users sist infringing to “materially Maj. contributes not.” does payments processing but Records, Nap v. Inc. A & M conduct.” 797, at 797.4 op. (9th 1004, Cir. 1019 Inc., ster, 239 F.3d distinguish to struggles majority The omitted) (citing 2001) (internal quotations step in an “additional positing Amazon Artists v. Columbia Publ’g Corp. Gershwin ac- defendants’ chain” between the causal Mg (2d 1159, 1162 Inc., F.2d 443 mt., Id. at conduct. infringing tivities and Cir.1971)). opinion in recent Our “Google majority, According to the Inc., Amazon.com, F.3d 487 10, Inc. v. infringement to materially contribute may caselaw Cir.2007), (9th canvasses 701 parties easy for third it fast and making Google concludes in this area material, distribute to locate and if it contributorily liable be held “could for it easier make whereas 10 infringing Perfect knowledge that had tends which profitable, to infringement en using its search available images were infringe, to financial incentives increase to pre to measures simple take gine, could infringe- increase tends turn copy 10’s to Perfect damage further vent mistaken; majority Id. The ment.” such works, failed to take righted step.” Defendants “additional there is no 729. Sub Amazon, F.3d at 487 steps.” sale every credit card participate en for “search systems” “payment stitute are delivered images images; pirated sentence, it describes gine” approve only defendants buyer after wishes If consumer here: defendants payment. process the transaction from one image buy an 772, Inc., Technologies, 166 out, v. Inc. DGI maj. op. at 797 majority points 3. As 1999). (5th might 791 Cir. 11, 6, allegations plaintiffs n. n. infringement. theory of direct support also ("Defendants, ¶ here Google the credit cards 8 30 nor Compl. at Am. 4. Neither See First Websites, majori- infringement. designed Content the Stolen were jointly with Napster systematic distinguish in- this case from ty ... the willful tries to engaged in Studios, v. Inc. rights Metro-Goldwyn-Mayer property the intellectual and Grokster, Ltd., fringement of others). plaintiff 125 S.Ct. 545 U.S. Because plaintiff and of” (2005), we have where defendants’ theory appeal, L.Ed.2d argued this has not purpose. designed for no fact that But were it. services occasion address Napster and But n. Maj. op. direct in- committing may also be defendants court’s endpoint of this responsi- Grokster are fringement does diminish legit- many Google has though Even providing es- caselaw: infringers for bility indirect uses, that it imate, held noninfringing Amazon of stolen buyers and sellers sential services infringement contributory guilty would be liable for can be A defendant merchandise. helping to avoid modify its service it could based if and indirect both direct USA, infringers. See, e.g., Alcatel conduct. on the same just This is not an economic incentive secondary Maj. op. status. infringement; it’s an step (“Defendants essential in the at 800 merely provide a infringement process. ”); method of payment .... id. at 802 (“[A]ll parties involved simply use Defen- event, why I don’t see it matters system dants’ process payments for whether there is an “additional step.” Ma- infringing material.”); id. at 804 teriality turns on how significantly the ac- (“They only can away take the means the tivity helps infringement, not on whether currently websites use to sell infring- [the it’s step characterized as one or steps two (“Defendants ing images].”); id. at 805 can removed majority from it. The recognizes only refuse to process pay- сredit card that “Defendants make it easier for web- ments to the offending merchant within sites profit infringing activi- payment ”). network.... But why is ty,” maj. 796; at op. that defendants’ con- locating infringing images more central to duct infringement,” “tends increase id. than paying for them? If 797; at that defendants “have the effect of infringing images found, can’t be there can increasing ... infringement,” 798; id. at be no infringement; but if infringing im- that “Defendants have the power to under- ages for, can’t paid there can be no in- mine the viability commercial of’ the Sto- fringement either. Location services and len Content they Websites and that “make payment are services equally central to in- it easier for websites to profit from this fringement; majority’s the contrary asser- infringing activity,” 800; id. at that “De- tion is supported largely by disparaging likely fendants could take certain steps use of “merely,” “simply” and “only.” that See may have the indirect effect of reduc- (“[M]ere also id. at 803 ability ing infringing withdraw activity Internet,” on the id. a financial 803; ‘carrot’ at does not create the defendants could “reduce ‘stick’ of ‘right ability the sales,” number of those [infringing] con- id. trol’....”).6 at 805. Taking majority word, at its it

sounds like defendants are providing very majority The dismisses significance significant help to the direct infringers. of credit by arguing cards that “infringe-

My colleagues recognize, must, ment they as could continue on a large scale [with- that helping consumers out locate infringing them] because other viable funding content can constitute contributory in- mechanisms are Maj. available.” op. at fringement,5 but consign the means 797.7 course, Of the same could be said Amazon, 5. Grolcster, as Napster so, well as more consequence; of no this is not a hold as much. race where there only can be one winner. "[bjecause majority argues The location majority's 7.The claim that "Perfect 10’s fac- services directly lead Internet infring- users allegations tual contrary,” not to maj. ing images, display and often them op. on the at simply 797 n. not accurate. In- itself, website of deed, the service we find that loca- opinion, elsewhere majority tion important services are more and more plaintiff concedes that has "a made factual indeed, more 'material' —to allegation” in- essential — Stolen Content Websites fringement payment than Maj. services are.” "could not сontinue to exist as websites offer- op. at 797-98 n. Skipping lightly over ing images sale online.” at Id. 805-06 n. fact power that we lack the any- to "find” here, 18. How majority then can the hold thing, majority admits law, ser- apparently a matter that defendants important, vices are essential and material. liability absolved of "other viable That location may may services not—be funding mechanisms are Maj. op. available”? —or when worse does majority even admits, if majority As the Google. about funding viable the “other to describe tries to serve unable or unwilling Google were as alterna- serve that could mechanisms” could use consumers images, up According to the Search, cards: to credit Live tives Ask.com, Yahoo!, Microsoft Websites Content 797-98 Stolen majority, Id. at instead. AltaVista or A9.com available, from ad- profits [their] ... these were make “might none of Even if n. 8. pay- develop “might vertising” locate websites still could consumers depend on e-mails from do not through mechanisms that images forums, Maj. op. discussion companies.” friends, messages the credit card peer- added). chat, “typo-squatting,” This shows online tips (emphasis via using BitTorrent networking healthy imagination to-peer my colleagues advertisements online eDonkey, responsibilities, offline our contravenes but search en- (see disreputable infra), we must p. is that of which fundamental most jurisdic- in far-off on servers hosted gines presented parties facts the with the work of mouth. word old-fashioned even appeal. tions or facts on below, new not invent engines that search claim majority’s The no evidence presented disap- to a website effectively cause “could cred- without could survive pirates the that search their removing it by pear case is still as the cards, they, nor could it a stretch. quite results,” op. at maj. if Even stage. dismiss to motion at the Content the Stolen to what as speculation contributory infringement test for the If evi- admissible do “might” were Websites “infringement could whether really were doubt, we must seriously dence, I the aid large scale[without on a continue present to parties for one wait still viable ... because defendant] At the up it ourselves.8 it, conjure available,” should Amazon are mechanisms plaintiffs accept we must stage, pleadings liability because Google have absоlved indispens- cards are that allegations alterna- obvious availability of such Content the Stolen operation able Google could that held But Amazon tives. would websites Websites, that these and be- infringement contributory for liable be them. without of business out forced be users “substantially assists” it cause (“Stolen ¶2 at Compl. First Am. See materials; existence finding exist without cannot Websites Content was not infringement of other means of [de- participation direct knowledge and sug- no has case even considered ¶ (“[T]he Stolen fendants].”); at 10 id. consideration. be a relevant this to gested eradicated.”). be would Websites Content mecha- ... viable “other majority’s The result their justify can’t my colleagues If Amazon, Nap- test conflicts nisms” allegations, contradicting plaintiffs without material every other ster, Grokster they’re that hint good pretty ais this of. I know that case assistance they way change “might” true, Websites tent majority accept as as If we at 797. payment develop alternative business do does, Websites Stolen Content that the says it viable "other hardly proves that images, mechanisms to sell longer be able will Maj. op. available.” funding by mechanisms do so they could still hold can we how added). majority's (emphasis (unknown unsuspected) developing other happen "might” to what prognostication paid? get ways to likelihood open the future leaves admits positively happen, and that, will not we were even if passing I note payment alternative no viable there speculations, majority's accept today. Con- mechanisms Stolen That the insufficient. would wrong. p. See also 812-13 n. supra; pp. ation, distribution, display which can 818 n. 819-20 occur without payment. if Even infra. images for, paid were not there would still

The majority’s attempt distinguish lo- be infringement.” Maj. op. at 796. What payment cation services from services majority seems to be arguing here is trying to that there are show viable alter- helping an infringer get paid cannot natives the latter for but not the former materially assist because the entirely cuts against plaintiff them. As process actual of infringement “reproduc- alleges, experience us, tells there are — tion, alteration, display and distribution”— ways numerous of locating infringing im- does not payment. include There are two ages Internet, on the but there are no problems argument. with this The first is adequate substitutes for credit cards when that the Stolen Content it comes Websites are al- paying A them. few con- leged to infringe plaintiffs right sumers of distri- might use money checks or orders “by 106(3). bution § sale.” 17 U.S.C. pay It’s infringing images, but this possible distribute cumbersome, would be sale without far more time-con- receiving compensation, so suming is in risky using than credit cards. part fact of the infringement pp. process. See 817-18 & n. 14 If it mat- infra. Second, argument runs tered whether head-on into engines search or credit Amazon, we cards where held important helping are more to peddling in- find infringing images fringing Internet, materially content on the assists the cards infringement, even though locating would win infring- hands down. ing images isn’t “reproduction, also altera- But it doesn’t matter. Material assis- tion, display [or] distribution.” To be tance turns on whether the activity in sure, locating images, like paying them, for question “substantially infringe- assists” it makes a lot easier to infringe, but nei- Amazon, ment. at 729. F.3d It ther is intrinsic to the infringement pro- makes no difference whether the primary cess, as majority the it. conceives infringers might do without it finding a workaround, which why majority the can today’s Nor can opinion be squared with cite no supporting analysis. case its We Fonovisa, Cherry Auction, Inc., v. Inc. presume primary that infringers good have (9th Cir.1996). F.3d 259 Fonovisa, de- reasons selecting particular a means to fendant allowed known infringers to sell infringe, ways to do so will pirated works from stalls at swap its meet. be costly, more more cumbersome and less We found material assistance based on the Moreover, efficient. infringement can al- fact that “it would [have difficult for been] ways means; be carried out by other if the infringing the activity place to take in the existence of alternatives awere defense to quantities massive alleged sup- without the contributory infringement then there could port services provided by swap the meet.” never be a case of contributory infringe- 76 F.3d at pivotal 264. The played by role on based material assistance. The swap the in meet Fonovisa played by majority makes very some very new—and the credit in cyberspace, cards in bad—law here. make quantities” “massive of infringement majority The also a slightly makes dif- possible that would be impossi- otherwise ferent argument: “While Perfect 10 has Indeed, ble. the provided assistance here alleged that Defendants it make easier for is far more material than in Fonovisa. A profit websites to from ac- pirate kicked of a swap out could still meet tivity, the reproduction, issue here is peddle alter- his through illicit wares newspaper Con- of the Stolen lifeblood the financial can’t do mouth, you but by word ads without Internet tent Websites. all on at business alleg- plausibly thus Plaintiff cards. imposing majority’s concern The Websites Content “Stolen es impli- would here defendants liability oh with- if defendants eradicated”

would be who actors of other numbers cate vast Compl. Am. First support. drew infringers, services incidental provide ¶ 35. Line-draw- 800, is unfounded. op. at maj. by point Fonovisa rejects majority tricky, but courts a always bit ing is provided meet there swap ing out dealing with adept at themselves shown infringement place” “centralized a mind, resolving such in time out from 799, whereas maj. op. at place, to take and reason- causation proximate issues no connection “have direct here defendants Contributory infringement suspicion. able But 796.9 id. at infringement,” to [the] infring- to the assistance requires material on depend does assistance material majority worries those activity, and ing activi contact physical lia- absolved would doubtless about dealer drug money to a lend you If ty. in- to the contribution bility because their drug it to finance he will use knowing material. insufficiently activity is fringing transaction, deal, assist you materially Or, you if drugs. you never see if even fact, difficulty have, had Courts the scene knowingly principal drive in- materially who distinguishing those assistance, material crime, you provide infringement copyright volved during the ride. nothing happens if even explains, Fonovisa not. As who are those Lopez, 482 States v. See United first in the developed two lines cases Cir.2007). (9th assis Material 1076-79 century: absentee of the last part assists the conduct on whether tance turns cases. dance hall and the cases landlord way, not significant in a who landlords involved first line to unrelated distinctions factual pedantic acts of infringing knowledge “lacked infringe activity facilitates how much con- exercised no and who tenant[s] [their] ment. Fonovisa, premises.” trol over leased works Sure, for pirated marketplace liable held These were F.3d at 262. 76 Fonovisa) for such (as an or index by tеnants committed infringement for the Grokster) (as Napster works See, v. e.g., Deutsch premises. on the so infringement, but to important Cir.1938). (2d 686, Arnold, 98 F.2d paid. Defendants getting means of cases, operator “the line the second infringing trans- every directly involved held liable venue was an entertainment by credit is made action where the operator when performances infringing (according plaintiff) to card, which (2) ob- (1) premises control could pirated virtually every sale to amounts from benefit financial a direct tained ¶ at 35. Cred- Compl. Am. First works. infringing enjoy to audience, paid who tangential ser- some provide don’t it cards (citing Buck sales; performance.” they are affects marginally vice that reside[s] "[n]ever material infringing Napster distinguish to majority seeks 9. The or com- through any network by arguing grounds pass[es] on or on similar and Grokster provide "tools do not id. operate,” defendants that the puter Defendants 800, material,” id. at to locate v. Co., Realty Jewell-LaSalle 283 U.S. Infringement Vicarious 51 S.Ct. (1931), 75 L.Ed. 971 party A “infringes vicariously by profit Room, Dreamland Ball Inc. Shapiro, v. ing from direct infringement while declin Co., (7th Bernstein & 36 F.2d 854 Cir. ing to exercise a stop to or limit it.” 1929)).10 Amazon, 487 F.3d at 729 (quoting Grok ster, 930, 125 2764) 545 U.S. at (inter These show that S.Ct. cases courts are able to nal quotation omitted).11 marks forestall the majority’s parade There is of horribles. no doubt that defendants profit But our from the present case does not a close or infringing activity of the Stolen Content question: difficult are al- here Websites; all, after they take a cut of leged provide an essential service to virtually every pirated sale of material. infringers, a service that infringe- enables ¶ ¶ First Compl. Am. at 4 7 25. The a massive scale. Defendants majority does dispute point so I know about the infringements; they profit need not belabor it. Maj. op. at 806. them; they are intimately and caus- ally involved in a vast number of infringing Defendants here also have a right transactions that could not be consummat- stop or limit the infringing activity, a right if they ed refused process the payments; they have refused to exercise. As the they have ready means stop the in- majority recognizes, “Perfect 10 ... claims fringements. Were plaintiff, we rule for that Defendants’ rules and regulations per- should, as we I every confidence mit require them to member merchants to future courts would be able to distinguish illegal cease activity presumably includ- — this case when they and if are confronted ing copyright infringement a condition —as against lawsuits utility companies, continuing right to receive credit software vendors and others provide who card payments from the relevant Defen- incidental services to infringers. dant Maj. entities.” op. at 804.12 Assum- majority 10.The consigns (7th Cir.2003), dance hall/ab- I'mand confident that federal sentee landlord cases to oblivion holding judges west of the Rockies figured could have they have no relevance to the Internet. out how to do the same. Maj. op. at 798 n. 9. It is true that these cases developed were in a brick and mortar interprets "stop Amazon lan- limit” world, but the distinction draw between guage requiring legal right "a stop materially those who (and assist limit conduct, allegedly as well liable) are therefore and those who are more practical as the ability ‍​​‌‌‌​​‌​‌‌​‌‌​‌‌​​​‌​‌‌​‌​​​‌‌‌​​‌​​‌‌‌​‌‌‌​‌‌‌‍Amazon, to do so.” (and remotely involved not therefore lia- 487 F.3d at 730. ble) equally is important perhaps even more — important cyberspace than in space. real —in allegation Plaintiff’s point, on this as on 12. Napster That and Grokster did not consider others, many very specific: is these hardly significant. cases is The defen- dants there were centrally When involved in MasterCard or the Visa learns of a mer- infringing indeed, engaged fraudulent, major- illegal, as the chant in transactions — or oth- us, ity systems reminds their improper were erwise created practices, business their solely promote infringement, maj. op. regulations own require at them to cause 799 n. 801—and thus and, there could be no member investigate banks to depend- argument that their ing involvement in the on misconduct, in- the nature of the termi- fringing transactions was peripheral too nate the merchants the Visa and give rise to a claim of secondary infringe- systems. MasterCard The rules of both as- ment. The managed Seventh Circuit apply strictly prohibit sociations members from the dance Internet, hall cases to the see In re servicing illegal businesses. Aimster Copyright Litig., 334 ¶ First Compl. Am. at 6 20. to do infringer’s refusal secondary the cards the allegation,13 this truth of ing the infringer could the by con- direct with to them business authority, given the have and altogether Websites infringement Content stopped the Stolen tract, force have from their images Yet, presumed have courts to remove forever. using defen- for condition inventory as a infringe- means particular removing the merchants If the systems. dants’ make case would in each challenged ment stolen stop peddling their websites comply, more difficult infringement direct or stopped is and so content scale of thereby diminish defendants comply, don’t they If limited. activity. law copyright under have —and pay- their off have the pirates Here, Content Websites kick the Stolen duty the —to find other networks, them to forcing payment, a form cards as chosen of busi- go out paid getting means of cards Credit reason. good for is too, infringement case, In that ness. transfer permit ubiquitous in meet swap or limited. stopped of seconds. electronically a matter funds vicariously pre- liable held was Fonovisa weeks days or wait need not Consumers pirates force it did not cisely because its reach destination a check to for leave; there infringing or stop to the salacious gaining access before clear different- here defendants to treat reason also know crave. Consumers pictures ly- card are by credit that, bought goods if other find some might pirates That reverse likely delivered, cards will no conse- is of business doing way thus act cards Credit transaction.14 perfectly cases make our quence; effectively guaran- agents, escrow informal in Fonovisa It didn’t matter clear. deliver merchants will teeing that their continued could have there infringers accept credit ability Blocking the goods. mail order illegal sales their the Stolen heavy blow cards would merchandise unlawful their hawking are “over- cards Content Websites Nap- matter Nor did corners. street cus- by which way primary whelmingly the infringers direct that the or Grokster ster Web- to view Stolen Content pay tomers illegally means of find some might ¶ Even 35. Compl. Am. First sites.” oth- content protected their sharing way an alternative could find pirates if the involving no case Indeed, there ers. trade, being denied illegal their of plying back to the going secondary infringement, business doing means preferred century, where last hall cases dance website, explains that example, Visa's fact, it’s true. no doubt can be there acquirers card Rules and its issuers Merchant "Visa example, MasterCard For pro- Payment dispute Transaс- resolution provides place "[a] efficient an Manual USA, Dispute of the follow- & may Chargebacks be effected tion cess.” Visa gambling win- ... to transfer ing reasons: Resolution, http://www.usa.visa.conV currency, or chips, to related nings or funds merchants/operations/chargebacks dispute— — were gambling that for usable value other 24, (last March visited resohitiorVindex.html gambling; connection purchased in for arise "[cjhargebacks 2007). right stop” "absolute to infringements, the free reject it.

819 Terminal, 359 Dist. Brooklyn Eastern v. more made is ifor products, ful 760, 3 L.Ed.2d 770 235, 231, 79 S.Ct. U.S. cumbersome, will dramati- this difficult 41, Gibson, 47- 355 U.S. (1959); Conley v. may Some operations. their affect cally (1957). A 2 L.Ed.2d use 78 S.Ct. unwilling to are who customers lose ambig reading means others liberal construction payment;17 forms of alternative save that way in a would may business; provisions others uous still of out may go dismissal, some their complaint from from the content infringing the remove lines the reading that between admits majority times even the Even websites. every reason pay- benefit card the plaintiff to credit give losing access “fear heard never suffi- I have be a would inference. able services processing ment by ignoring liberally website some reading complaint least a for at incentive cient clearly present. content-based a allegations with comply operators at Maj. op. Defendants.” suggestion “under- majority the say But let’s activi- infringing consequence, aAs 804.18 correctly: allegations plaintiffs stand[s]” See limit[ed].” “stoptped] be ty would infringe- vicarious a To sustain So what? Amazon, 729. F.3d at allege that not claim, need plaintiff complaint the reads majority also The com- “would Websites Content the Stolen “under- by worth it’s less than for or that vanish pletely “that allege standfing]” plaintiff necessari- forms would in all its these sites could contin- Websites’ Content ‘Stolen n. 18. at 805-06 Maj. op. ly cease.” offering images websites exist as ue to infringing “stop or limit” is standard withdraw defendants should online sale (em- Amazon, at conduct. the web- services, allege] not [to their Grokster, 545 U.S. added) (quoting phasis in- or that vanish completely would sites 2764). my col- And 930, 125 S.Ct. at forms all its sites by these fringement alleged plaintiff has admit leagues 805- Maj. op. at necessarily cease.” would operators website some “at least alleges expressly plaintiff But n. 18. sug- a content-based comply [would] it not “understand^]” majority whаt Maj. op. from Defendants.” gestion exist” “cannot sites namely that the allege, Q.E.D. 2at defendants, Compl. First Am. without however, need case, we resolve To Websites Content “the Stolen cards all credit holding a rule adopt use could not if be eradicated” would sales Internet all responsible ¶ horn- It is cards, at 9-10 35. id. more than far alleged has plaintiff complaints construe that we must law book relation- ordinary credit card/merehant Glus See to dismiss. motion liberally on a contrast, the By ed, uncertain. its results patronage may take customers Those be can service stopping an essential threat website. plaintiff's army once, hiring an without implemented at "fi- as mere disparages this majority 18. The juries of judges and persuading lawyers or prior of no I am aware pressure,” but nancial economy an cause. one's rightness of legal to exercise holding that the case pressure competition, financial marked activity is over pressure" "financial patronage diminishes costs or raises finding of vicarious support a insufficient holding that By weapon. powerful can be precedent. dangerous a infringement. This pressure financial right to exercise legal and economic world a commercial live in We establishing vicarious basis for insufficient an mo- strongest possible often incentives hasty and colleagues take my empty infringement, often stronger than tivators—far law. development of demon- step case As this litigation. unwise threat strates, protract- costly and litigation can ship. According plaintiff, defendants there could be no vicarious infringement, adopted special rules practices Google lacked “the legal right to that apply only to the Stolen Content Web- stop or limit the direct sites, and designed that are to make it third-party websites.” Id. at Why 730. easier for these ply websites to their illegal the majority believes any way this is in ¶¶ trade. First Am. Compl. at 9-11 33-37. analogous, or even remotely instructive, to Plaintiff claims that the credit cards have situation, our where the credit cards do singled out Stolen Content Websites have contracts giving them a right to con- for preferential treatment because of the trol what merchants sell on websites, their unusual and profits substantial they make mystery. is a on such transactions. fully Read and fair- Goоgle’s relationship with websites

ly, the complaint alleges that defendants participate in its AdSense program pres- are not merely passive providers of ser- ents a somewhat closer analogy because vices available on equal terms to legal and Google did have contracts that would have illegal alike; businesses they are actually allowed it to kick websites out of AdSense pirates cahoots with the prop up their for displaying infringing images. But illegal businesses and share ill-gotten their that’s as far as the similarity goes: Ad- gains. If this is not infringe- vicarious Sense is an advertising program; Google ment, nothing is. pays participating merchants to host third- majority claims Amazon em- party on ads their websites. This is the ploys “reasoning closely analogous” to its cyberspace analogue of renting out space own, maj. op. but it is mistaken. your land for a billboard. The ads have Amazon questions addressed two of vicari- no effect on the operation of the host ous infringement, one involving third-party websites; users can download infringing websites whose images picked up by content whether or not ads present. Google’s engine, search involving Being excluded from AdSense would thus websites that participate in its AdSense mean revenue, some loss of but would have program. first, As to the Google could not no effect on the operation of the business be vicariously liable because “Perfect 10 itself. It is therefore far from certain that ha[d] not shown Google has contracts merchants would be induced modify with third-party empower websites that their businesses to avoid being excluded Google stop or limit them repro- from AdSense.20 ducing, displaying, and distributing in- fringing copies of Perfect 10’s images on Because plaintiff had presented the Internet.” 487 F.3d at 730.19 In the proof third-party websites would absence such a contractual relationship, stop infringing they if were threatened also relied on the Amazon district court’s suggests Anecdotal evidence that the Ad- finding Google practical program ability produces "lacks the Sense vastly less revenue police program most third-party members what websites' than through earn poll businesses. conduct” One because the technical means for do- found that 45% of AdSense members sur- ing suggested so by plaintiff "were not worka- veyed earned per $30 less than month from ble.” (citing Id. at 731 opin- district court’s the program, only percentage small ion, Inc., Google, 10 v. F.Supp.2d Rowse, earned a substantial amount. Darren (C.D.Cal.2006)). 857-58 & n. 25 There Earnings Results, AdSense November-Poll not, be, and cannot finding such a here as (Dec. 19, 2005), Problogger http://www. presented the case is 12(b)(6) aon motion. problogger.net/archives/ 2005/12/19/adsense- earnings-for-november-poll-results/.

821 effective, just as be support, can nancial AdSense, Amazon from exclusion with effective, techni- than more sometimes and not met there had plaintiff that concluded circumvent- be can often that measures cal injunction. preliminary a its burden dis- ed.21 to aon motion presented case Our only make need here plaintiff

miss the Su- majority dismisses the Finally, that the alleges And plaintiff allegations. by sug- in Grokster opinion Court’s preme do- continue not could infringing websites not have could the Court gesting of credit the use all at without ing business it the standard it because said meant what point on this reasoning Amazon’s cards. (and adopted Ama- we announced help. no majority the gives many goods and ) in too sweep would zon distinguish attempt to majority’s The activ- to contribute services ar- colleagues My thin. equally Napster hardware (listing maj. op. at 806 ity. See involve- program’s Napster gue “[t]he techni- manufacturers, engineers, software much infringement was the ... with utilities). The companies support cal directly intertwined intimate more opinion. Court’s the misreads majority systems payment Defendants’ it than with infringer to an service a crucial Providing see But I don’t 803. Maj. op. at are.” ability to practical the someone may give you “directly intertwined” much more how only half that’s but infringement, stop than transaction purchase get can infringer. a vicarious to be it takes what to seller. buyer from payment the carrying contract, found in right, half is a example, we deal, for drug awere If this Am- See actions. infringer’s the control entrusted guy the say that never would “contracts (requiring azon, at 730 less money is purchase delivery of the with [de- empower infringers] [direct with guy the than transaction the involved repro- limit them stop or fendant] Both would be seller.' find the helps who in- distributing ducing, displaying, culpable. equally held the parties third Those copies”). fringing be held not about could majority worries that de- insistence Thus, majority’s laсk they because vicariously liable access block themselves “cannot fendants So infringement. stop websites, right legal Internet, any particular to the provided are know, I utilities as far the location enabling engines search or to contract, franchise, public 804, is beside at websites,” maj. op. of such elec- providing stop right utility has in- over control Physical point. learns it service phone tricity or infring- stop toway activity is one fringing illegal being put electrons its way. only certainly not ers, it’s but usu- don’t manufacturers Computer use.22 fi- services, such Withdrawing crucial See, Orders and General e.g., Rules long been support has Providing financial 3.302, avail- § Board infringement, Public Service Vermont vicarious a basis for held support carries http://www.state.vt.us/psb/rules/Official at financial where that able (last visited approve the right to contractual AdoptedRules/RulesComplete.pdf Nemours de E.I. DuPont v. activity. 2007) ("[N]o utility Davis disconnect shall See May (S.D.N.Y.1965). Co., F.Supp. electric, & water gas, service residential Davis, a dramatization sponsored DuPont charge is bill or of a valid unless in- Frome,” alleged to which was "Ethan Hampshire, Con- New State delinquent.”); was held DuPont copyrights. fringe several at 5 Responsibilities, Rights and sumer liable, not own though it did even vicariously http://services.unitil.com/ (1996), available facilities, and broadcast studio rights.html. content/info/consumer — airing the show prevented could sponsor. with another ally retain the to reclaim computers The cases on which the majority relies they have sold because being are not to the contrary. Inwood Labora- used unlawfully. Ditto for tories, pro- software Inc. v. Laboratories, Inc., Ives repairmen. ducers and Having 844, con- U.S. 102 S.Ct. 72 L.Ed.2d 606 tract that authorizes them to provid- stop (1982), involved a manufacturer says ing services on account of illegality, these nothing consequence bearing on our sit- actors do not meet the first prong of the uation. Lockheed Corp. Martin v. Net- test for vicarious infringement. p. See Solutions, 816 work Inc., 194 F.3d 984 n. supra.23 10 (9th Cir.1999), turned on the fact that the there,

defendant a registrar of Internet Infringement Trademark names, domain lacked sufficient control “over the third party’s means infringe- For precisely reasons, the same I dis- ment,” because it lacked “control and mon- agree with the majority when it claims itoring of the instrumentality used do defendants not contributorily in- third pаrty to infringe the plaintiffs fringe on Perfect 10’s trademark because marks.” By contrast, Id. credit cards are “[djirect they lack control and monitoring directly involved in every infringing trans- instrumentality used par- third action; only do they process pay- ty to infringe plaintiffs mark.” Maj. virtually every pirated sale of (internal op. 807 at quotation marks omit- images by the Stolen Websites, Content ted). The Lanham Act forbids “use in they control whether such transactions will commerce ... of a registered mark in go forward. This is more than enough to sale, connection with the offering sale, establish the “control and monitoring” that distribution, or advertising goods or Lockheed requires Martin for contributory services or in connection with which trademark infringement. such use is likely to cause confusion.” 15 1114(l)(a). § U.S.C. Plaintiff alleges that As to vicarious trademark infringement, the Stolen Content sell Websites images the majority claims that there is neither a marked with Perfect 10’s trademark. symbiotic partnership between the direct ¶ First Am. Compl. at 17 65. Without infringers and defendants, nor authority to defendants’ payment systems, the infring- bind one another in transactions with third ers would find it much harder to peddle parties. Maj. op. at 807 (citing Hard Rock goods. Plaintiff pled thus Licensing Corp. v. Servs., Concession Cafe facts sufficient to state a claim Inc., for contrib- (7th 955 F.2d Cir.1992)). 1143 But utory trademark infringement. plaintiff alleges that the Stolen Content 23. The majority is also Aimster, mistaken sug- when it 654; Fonovisa, 334 F.3d at 76 F.3d gests parties would be vicariously 262; held Amazon, at 487 at 729-31. Re- because, liable for simply in a sponding call, to a service in the absence of a economy, market they are free not to deal contract provides that the may service with one Maj. another. op. at n. 17. Our be discontinued in the event of illegal con- cases very have been duct, clear that more is re- cannot form the basis of vicarious liabil- quired for infringement; vicarious ity defendant and thus the fact that the technician free must have a formal principal- contractual or to leave can't render him vicariously liable. agent relationship with infringer. It is requirement plaintiffs point a to rela- that contract relationship that forms the tionship spelled explicitly out in a contract or predicate for liability, plaintiff vicarious legal arrangement important is an limi- point must to some term in the contract or tatiоn may on who be held to answer for formal relationship gives defendant a infringement. vicarious It should not be ca- right stop See, the infringing activity. e.g., sually discarded. contrast, By plaintiff consumers. ly to use of without operate cannot Websites knowing ¶ that defendants alleges here Compl. Am. cards, First of transactions in thousands participants by- profits huge make defendants while practices trade to unfair amount See transactions. illegal these processing of publicity infringe on symbiosis, If this is supra. p. also I images. the stolen depicted women “the websites’ Likewise, while is? what preclude would Emery that nothing see ... bind the consumers with the contracts claims, alleged state law plaintiffs images,” provide websites complaint. removed), it is (emphasis maj. op. at the websites that bind actions defendants’ the credit Only after that contract. us for much easier be certainly would It the process approve cards Content the Stolen suing if were plaintiff stolen the to deliver obligation the does . No cards. the credit rather than majority Websites The existence into come content But could.24 if doubt, they would they vicari absolving defendants in errs thus ubiqui- too are sometimes infringers direct infringement. trademark ous find. difficult to too tous, or too small as Fonovi- cases such why we have That’s Law Claims

State Ama- Aimster, Grokster sa, Napster, many di- state law that Here, alleges disposes plaintiff majority zon. The copyright presence physical as the theory infringers the same on rect claims from operate not They defendants claims, namely, that States. in United the activity. are dif- where lawsuits the jurisdictions, in far-off directly involved impossible defendants But and remedies bring at 808-09. Maj. op. ficult easily infringers means can the they provide involved, because enforce thus content servers operations their pay move quantities” jurisdictions. remote “massive make ¶ 73. 18 Compl. at Am. First possible. pirates’ nefarious link in weak The for this get paid; need to is their scheme relies, majority on which The case legitimate services use the they must Asso Service v. Visa International Emery allega- plaintiffs If institutions. financial 952, 116 Cal. Cal.App.4th ciation, 95 insti- believed, financial be are to tions because, (2002), point is not 25 Rptr.2d here) billions collect (defendants tutions Visa, not only case, sued plaintiff that very merchandise; ain stolen sellers of rela a direct had that banks merchant making piracy sense, they profit real or the wrongdoer alleged tionship with should they no reason see can I possible. 962, 956, 116 Cal. Id. consumers. responsible. held his also based there Plaintiff Rptr.2d lia- imposing that majority’s refrain letters advertising liability on theory of violate would here bility on defendants Emery held logo. card the credit bearing States,” United policy public “the po could ‍​​‌‌‌​​‌​‌‌​‌‌​‌‌​​​‌​‌‌​‌​​​‌‌‌​​‌​​‌‌‌​‌‌‌​‌‌‌‍Visa proven hadn’t plaintiff base. 797, equally off 795, is maj. op. at peddling letters logo in of its the use lice identifies correctly majority While direct- by merchants lottery sent illegal an v. Talisman claim); Inc. against brought fact, suit Perfect 10 has Perfect CV99-10450, Inc., WL v. No. Inc. infringers. See Commc’ns direct some Cir.2007) (re- 27, 2000). (9th LLC, CCBill, (C.D.Cal. Mar. infringe- on direct summary judgment versing policy facilitating as the development of Nor plaintiff does seek to hold the cred- commerce, electronic at 794 id. n. responsible cards for illegal activities solicitude does extend to commerce in they are unaware. Plaintiff claims illegal merchandise. I am aware no that it has repeatedly written to defen- policy of the United States to encourage dants, “putting them on notice of more electronic commerce in goods, illegal stolen than 240 specifically identified Celebrity or drugs child pornography. When it Porn Websites with stolen obvious content comes to traffic in material that violates they were supporting.” First Am. Act, Copyright the policy of the United ¶ Compl. at 19 75. Plaintiff has also sent States embedded the FBI warning we “[djeclarations defendants from celebrities see at the every start of lawfully pur- [such Britney Spears, Aguil- Christina chased rented Infringers video: are to era, Anna Kournikova and Yasmine be stopped prosecuted. Preventing stating Bleeth] have not author- financial intermediaries from servicing ized name, the use of likeness, shady such entirely transactions consis- identity on pornographic websites arid that tent with policy. Congress If believes they do not want their images and names places too heavy a burden on ¶ so used....” Id. at 19 77. Credit cards cards, it can grant the cards immu- already have the police tools to the activi- nity (along with corresponding responsibil- ties of merchants, their which is why we ities), as it did for ISPs passing the don’t see credit cаrd of illegal sales drugs DMCA.25 or child pornography. According to plain- The majority’s solicitude for “credit tiff, “defendants inspect websites and busi- cards ... as the primary engine of elec- premises, ness and obtain and review mer- commerce,” tronic and for preserving “the chants’ statements, bank returns, tax vibrant and competitive free market credit reports, and a merchant’s other fi- presently exists for Internet,” maj. ” op. ¶ nancial information.... Id. at 7 is understandable but misguided. Plaintiff is asking for a huge change in It does not serve the interests aof free the way credit business; cards do they market, or a free society, to abet maraud- ask only defendants by abide ers pilfer who the property of law-abiding, own rules and stop doing business with tax-paying holders, rights and who turn crooks. plaintiff Granting the relief it consumers recipients into proper- stolen not, seeks would I confident, am be the ty. Requiring defendants to by abide end of Capitalism as we know it. rules, their own which “strictly prohibit members from servicing illegal case, This an easy busi- squarely controlled nesses,” ¶ First Compl. Am. at 6 our precedent will in all material respects. hardly impair the operation Fairly of a “vibrant applying our cases to the facts al- and competitive market,” free leged more by Perfect we should reverse the than did the recent law prohibiting the use district give court and plaintiff an opportu- of credit cards Internet gambling. nity See prove its case through discovery § U.S.C. 5364. and trial. In straining to escape the strie- 25. The majority finds it "anomalous” to hold from those that are not. Plaintiff here did credit cards liable without DMCA-compliant give ample cards, notice to the credit p. see notice, while ISPs are immune unless infra, should have its claim dis- receive such Maj. a notice. op. at 795-96 n. failing missed for allege compliance with a 4. But there anomaly is no treating parties statute apply that does not to them. that are covered differently statute

825-833 draws caselaw, majority our tures INC., cor Nevada MORTGAGE, U.S. that are distinctions ephemeral series individual; Keilly, an poration; John opin- permitted; nor required neither Dis Brouwers, Memorandum W. John trouble. end prove will ion Family Limited Brouwers position, Bank; Savings

Partnership, First Ne College Community of Southern Family Connelly Foundation; vada Mary Connelly Con Terry Trust, Dove, Cromer; Trustees; Alisа nelly, Dowlings Lucette LLC; Gerald Lu 07/06/99, Gerald DTD Trust Trustees; Dr. Invest Dowling, cette Engle, Trus Ltd.; A. ments, Lorraine Family Engle A. Lorraine of the tee Gagnon, Guy 05/31/79; UAD Trust Trust; Family Gagnon Trustee Gagnon, Trustee Joan Diana M. Trust; Arlene Family Gagnon 02/13/01, DTD Living Trust Garman Gunning Trustee; Garman, Arlene 12/09/94, Sean Family UAD Trust K. Trustees; Barbara Gunning, Emily 05/03/96; Living Trust UAD Hanford Jensen, Trustee Harlan; Carl Michael Family UAD Trust the Jensen Jensen, Trustee 10/27/90; Janet 10/27/90; Family UAD Trust Jensen Keilly of the Keilly, Trustee M. John Keilly, Trustee Trust; M. Family Jo Trust; Family Keilly William Account, Custodi Kreger Rollover Ira agent Bank, Savings First an Reh Bank; L. Savings Marvin First Reise; Trust; Eugene H. Family kop Rodowick, Trustee Leonard Trust; Ro Alice Family Rodowick the Rodowick dowick, Trustee Trust, Family Trust; Family Scheer Scheer, and Lori W. Scheer Ronald Trust, Pau Family Trustees; Schlaf Sega; Trustee; Robert M. Schlaf line Trustee Speziale, Sega; Velatia Allis Trust; Living Speziale Properties, Sterner; Winstrom Dale Inves Wright; Nevada Inc.; Eileen DTD Trust Stanley Inc.; Ames tors, It notes also purpose any other any illegal purpose reasons, among which are primary many for impermissible.” to be by MasterCard deemed errors, fraud, processing disputes, customer International, Rules Merchant MasterCard issues, and non-fulfillment authorization (2006) 2.1.11.3(6) add- (emphasis § Manual ed), added). (emphasis requests.” Id. copy http://www.mastercard.com/ available MERC-Entire—Manual, us/wce/PDF/12999— pdf. would sharply curtail their unlawful activi- claiming its fidelity Amazon, maj. op. at ties. 796, 803, the majority jettisons Amazon’s “practical ability” standard and substitutes The majority toils to resist this obvious its own “absolute right to stop” standard. arguments conclusion but its not per- are Id. at 804.16 example, suasive. For it makes no differ- It’s perfectly clear that the cards do ence that defendants control only the “practical ability” to force web- payment, means of not the mechanics of sites that display their logos and use their transferring the Maj. 802, material. op. at payment systems to remove unlawful mer- In a environment, commercial chandise. admits, As the majority “Defen- (to payment distribution and use a dants can ... process refuse to credit card anachronism) quaint like love and mar- payments to the offending within merchant riage you can’t have one without the oth- — their payment network, they can threat- er. If cards don’t process payment, pi- en to do so if the merchant does not rates don’t booty. deliver The credit comply with a request to alter content.” cаrds, fact, in control distribution of the Maj. op. at 805 (disparaging “only” omit- infringing material. ted). Commercial websites dependent majority disparages also defen- on credit cards as a form payment, ability dants’ to control the Stolen Content the Stolen Content Websites are uniquely just Websites as pressure” “financial which so, as virtually all of their illicit sales are give doesn’t them an “absolute right to paid by for card. First Am. Compl. at 9 stop [the infringing] activity they ¶ cannot 35. A by threat — credit card companies to stop websites reproducing, altering, withdraw use of systems or distributing infringing images.” Id. at couldn’t ignored. all, be After many how (footnote omitted).15 804-05 But we have consumers would be willing to send a required never an right “absolute to stop check or money order to a far-off jurisdic- infringing] activity” [the as a predicate for tion in the hope that days or weeks later liability; vicarious enough it’s if defen- they will be allowed download some dants have “practical ability” to do so. saucy pictures? If the Stolen Content Amazon, 487 F.3d at pro- While Websites cannot get paid for their unlaw- majority 15.The tries to take back in a plaintiff foot- would be entitled to show that defen- says note by what it claiming text that an dants "practical have the ability” to do so. If right “absolute stop” is prerequi- not "a majority means says what it in its foot- site” to liability, vicarious but that its absence note, then what it says in text is beside the that[defendants], is "evidence much like Goo- fact, point. there can no doubt that the gle, right lack ability to control those majority text, says means what it because it [infringing] Maj. op. activities.” at 804 n. 16. upholds dismissal complaint on the Alas, it having won’t work. If not an “abso- ground that lack defendants the "absolute right lute stop” merely is "evidence” that right stop” infringers; the footnote is defendants lack sufficient control vicari- merely unpersuasive an attempt sweep infringement, ous then this can be offset conflict with rug. under the Amazon evidence that do have such control. Conflicts in the evidence must be resolved 16.The conflict with clearly trial, Amazon drawn discovery after not on a motion to in footnote majority where the explicitly dismiss. "practical disavows ability” as the standard ability,” "Practical the standard announced Amazon, infringement. vicarious Maj. capacious op. is a at 805 n. concept, far broad- er majority 17.The right stop.” than "absolute disagree Even free to if the with the majority were adopted caselaw, defendants lack standard our but is not

Case Details

Case Name: Perfect 10, Inc. v. Visa International Service, Ass'n

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 3, 2007

Citation: 494 F.3d 788

Docket Number: 05-15170

Court Abbreviation: 9th Cir.