We have discussed copyright infringement a number of times recently, but this story is different. This time, the court found in favor of the accused “infringers.” Is this a rare victory for piracy? Not so fast.  

First, we take you way back . . . to July 2010. Katy Perry’s “California Gurls” was No. 1 on the Billboard Hot 100. The skies over Iceland had finally cleared after volcanic eruptions wreaked havoc for weeks. And American teens everywhere were furiously sending each other multimedia messages, also known as MMS, or the text-message-based precursors to memes. A California-based company called Luvdarts was responsible for much of this MMS content, and in 2010, Luvdarts filed a lawsuit to protect its intellectual property.

Luvdarts sued AT&T, Verizon, Sprint, and T-Mobile for copyright infringement, vicarious copyright infringement, and constructive trust. Because Luvdarts’ customers could forward their MMS messages around to their friends, Luvdarts claimed that the mobile carriers’ MMS platforms were actually illegal file sharing networks in the same vein as old-Napster, Kazaa, or Megaupload. The original complaint not only seemed to conflate contributory and vicarious copyright infringement, but it also claimed that the mobile carriers did not qualify for the DMCA safe harbor provisions in 17 U.S.C. § 512. As Techdirt discussed in 2011, the U.S. District Court of the Central District of California dismissed Luvdarts’ lawsuit with prejudice for failure to state a claim. The Luvdarts crew promised to appeal and appeal they did.

The case landed in the Ninth Circuit, and the appellate panel promptly affirmed the lower court’s dismissal with prejudice. The oral arguments from the appeal demonstrate the Ninth Circuit’s confusion, and exasperation, with the case. A judge asked how the forwarding of an MMS message is different from someone forwarding an e-mail with an attachment (at 9:40 in the video), and the attorney for Luvdarts, Mr. Perrin Disner —an “[o]verall terrific guy,” according to his attorney profile—said, among other things:

“This system is not in a vacuum and also not in the untamed wilderness of the Internet. There are dozens and dozens of e-mail providers, and some of them have different options, different encryption options, or any number of different . . . tweaks they could give where . . . a specific email provider could specifically prevent a specific sending. Gmail famously put in a bar to sending emails after 2 a.m. and made you do math problems to make sure you’re not drunk.”

Not only was it nonresponsive to the panel’s question, but the lawyer’s response seems to suggest that if cell phones—or more precisely, the mobile carriers—implemented some sort of system like Google’s Mail Goggles to prevent late-night drunk texting, the forwarding of their MMS messages would be OK? Texts From Last Night would have something to say about that.

In its opinion, the court took issue with Luvdarts’ approach to vicarious copyright infringement. The Ninth Circuit’s opinion in A&M Records, Inc. v. Napster, Inc.  states that vicarious liability for infringement requires two elements: (1) the “right and ability to supervise the infringing activity;” and (2) “a direct financial interest” in the infringing activity. The court found that Luvdarts failed on both grounds:  

“Luvdarts concedes that the Carriers presently have no way of supervising the use of their networks for copyright infringement. Instead, Luvdarts’s complaint alleges only that the Carriers could ‘establish[]. . .a system’ that would give them the right and ability to supervise the infringing activity. Luvdarts argues that this allegation is sufficient to survive a motion to dismiss. Luvdarts fails to cite any authority to support this proposition, which runs contrary to our precedent.

. . .

[U]nder vicarious liability, [a carrier’s failure to implement such a system] cannot substitute for an allegation of a capacity to supervise. Luvdarts’s failure to allege that the Carriers have at least something like a capacity to supervise is fatal to a claim of vicarious liability.”

And so it went for Luvdarts. The court similarly found that Luvdarts failed to establish the elements for its contributory copyright infringement claim when it failed to prove that the carriers had actual knowledge of specific acts of infringement.

“Luvdarts argues that the ‘notices’ it sent to the Carriers, referenced in the complaint, sufficed to establish actual knowledge of infringement. However, these notices failed to notify the Carriers of any meaningful fact. The notices were 150-page-long lists of titles, apparently just a transcription of every title copyrighted by Luvdarts, which indicated that they wanted ‘accountability’ for the unauthorized distribution of those titles for the period from May 2008 to November 2009. These notices do not identify which of these titles were infringed, who infringed them, or when the infringement occurred. The Digital Millennium Copyright Act of 1998 (‘DMCA’), by which the notices purport to be governed, clearly precludes notices as vague as the notices here.”

The Ninth Circuit’s affirmation of the district court’s dismissal with prejudice means we will not be seeing Luvdarts in court again in this case. The lesson is clear—anyone alleging copyright infringement must meet the legal standards, or suffer the Luvdarts fate.