Last year, adult entertainment publisher ALS Scan took things up a notch by dragging several third-party intermediaries to court.
The company targeted CDN provider CloudFlare, advertising network JuicyAds, and several hosting providers, including Chicago-based Steadfast.
Steadfast was not happy with the allegations and has recently asked the court to dismiss the case. Among other things, the company argued that it’s protected by the DMCA’s safe harbor provisions.
“Steadfast does not operate or manage the Imagebam website. Steadfast does not in any way communicate with or interact with Imagebam’s individual users. Steadfast only provides computer storage,” the company wrote in its motion to dismiss.
In a tentative ruling issued this week, the California District Court agrees that the allegations in the second amended complaint (SAC) are not sufficient to hold the hosting company liable.
Merely hosting a pirate website is not enough to argue that the host contributes to the alleged copyright infringement on the image sharing site, Judge George Wu argues (pdf).
“In short, 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.
“The Court would therefore find that the SAC fails to allege facts establishing that Steadfast materially contributed to the infringement,” Wu adds.
Among other things, the Court notes that ALS Scan fails to allege that Steadfast provides its hosting services with the goal to promote copyright infringement, or that it directly encouraged Imagebam to show pirated content on its website.
In addition, the vicarious liability allegation is insufficient too. This requires the copyright holder to show that the host has control over the infringing actions and that it financially benefits from them, which is not the case here.
“Here, the SAC contains no allegations that Steadfast has a direct financial interest in the infringing activity or has the right and ability to stop the infringing conduct,” Judge Wu writes.
As a result of the lacking evidence and allegations to support a secondary liability claim, the Court tentatively granted Steadfast’s motion to dismiss.
The ruling does keep the door open for ALS Scan to file an improved complaint, but for now, the victory goes to the hosting provider.