A federal judge has just let a plaintiff know there’s a big difference between providing hosting for infringing content and actually participating in copyright infringement. ALS Scan sued basically everybody for copyright infringement after discovering adult images that it owned posted all over the web. In addition to Steadfast Holdings — the defendant just dismissed from this suit — ALS Scan sued Cloudflare, Juicy Ads, and a number of other hosting services and Does.
One by one, these defendants have been excused from the suit. The underlying logic for the dismissals is solid. Providing web hosting is not the same thing as contributory infringement, no matter how much ALS Scan wants it to be.
In the Steadfast ruling, Wu said that merely hosting a pirate site does not make the hosting service liable for any copyright infringement actions the site may be guilty of.
In its motion to dismiss, Steadfast argued that it did not manage or operate the Imagebam site, and that it only provided computer storage.
“The court is unaware of any authority holding that merely alleging that a defendant provides some form of ‘hosting’ service to an infringing website is sufficient to establish contributory copyright infringement,” Wu wrote.
“The court would therefore find that the [complaint] fails to allege facts establishing that Steadfast materially contributed to the infringement,” Wu wrote.
There’s a lot more Steadfast (and the other hosting companies) would have to do to be considered contributory infringers, and the hosting companies are doing none of those things. ALS Scan wants hosting sites to do more than they’re legally obligated to do. But it can’t sue just because it doesn’t agree with their practices. From the opinion [PDF]:
[T]he only allegations specific to Steadfast that are raised in the SAC are that Steadfast “hosts” pirate sites, including Imagebam, and that Plaintiff has sent numerous notifications to Steadfast of infringing content on Imagebam, but Steadfast has failed to implement or enforce a repeat infringer policy by removing Imagebam from its servers.
Beyond that, ALS’s complaint contains nothing that shows evidence of its claims.
Steadfast also contends that the SAC fails to allege material contribution or inducement. The Court would agree. The SAC alleges only that Steadfast “hosts” pirate sites that feature infringing content. It is entirely unclear what services Steadfast provides to Imagebam; what type of infringing activity Imagebam conducts (or even what Imagebam is); or how Steadfast contributes to or facilitates that infringing activity. As such, the Court would find that the SAC fails to plead material contribution.
The same goes for the rest of the allegations. Steadfast did not induce or contribute to infringing activity at hosted sites, nor did it somehow violate ALS’s trademarks by hosting sites where infringing images could be found.
As Judge Wu’s opinion points out, it’s not up to the court to determine whether sued websites are “responsive enough” to rightsholders’ demands. The law rightsholders wanted — the DMCA — sets the rules and as long as sites and hosts follow the statutory requirements, they’re insulated from most infringement claims.
It appears ALS is engaging in pray-and-spray litigating. Beyond the Does, there’s been no attempt made to target those actually participating in copyright infringement. Instead, ALS sued a bunch of hosting companies (and an ad network) in hopes of landing a settlement or two before its allegations were exposed as weak and baseless by the presiding judge.