Metropolitan News-Enterprise


Tuesday, March 26, 2013


Page 1


Ninth Circuit Upholds Dismissal of Suit Over MMS Content




Wireless telephone carriers are not responsible for alleged copyright violations by customers who retransmit multimedia messages from third parties, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel affirmed the dismissal of a suit by plaintiffs including Luvdarts, a company that creates “greeting card-style messages” as well as news and advertising content for delivery to cell phone users over MMS networks.

Luvdarts claimed that the major cellphone providers--AT&T, Verizon Wireless, Sprint and T-Mobile—should be held liable, on vicarious or contributory liability theories, because their customers routinely forward the messages to others in violation of Luvdarts’ copyrights. The plaintiffs likened the MMS networks to file-sharing networks, a subject of a number of infringement lawsuits.

U.S. District Judge Dean D. Pregerson of the Central District of California dismissed the suit two years ago, and the Ninth Circuit panel affirmed.

No ‘Capacity to Supervise’

Judge Diarmuid O’Scannlain, writing for the Ninth Circuit, said the carriers could not be held liable in the absence of an allegation that they had “something like a capacity to supervise” their customers’ messaging.

“Even if the doctrine of vicarious liability imposed some affirmative duty to acquire supervisory capacity, Luvdarts has failed to allege facts that plausibly show that the Carriers could implement an effective system, the judge wrote. “Luvdarts’s complaint states only that the Carriers should ‘establish a metadata system of digital rights management.’ Nowhere does Luvdarts explain what that system is, how it would function, or how much implementing such a system would cost. As a result, Luvdarts has not given us any facts that tend to make plausible the assertion that the Carriers could implement a system in the first place, much less that the Carriers could plausibly implement a system at a low-enough cost to justify imposition of vicarious liability.”

No Contributory Liability

Nor can the plaintiffs prevail on a contributory liability theory, he said, because there was no specific allegation that the carriers knew the messages were being retransmitted.

Judge William Fletcher and visiting Senior Judge Edward Korman of the Southern District of New York concurred in the opinion.

At the time of the suit, one of the plaintiffs, Max Davis, a commenter at the time for the TechDirt technology blog, said the suit could be worth $3 billion in penalties.

“Call me naive,” he said in a press release, “but I think that the wireless carriers are aware of this ongoing infringement and would be willing to come to a meeting of the minds for the purpose of resolving the problems and fairly compensating copyright holders now and in the future.”

Another TechDirt commenter said yesterday:

“To say the court was not impressed would be an understatement.”

The appeal was argued in the Ninth Circuit by Perrin Disner of Los Angeles for the plaintiffs and Bruce G. Joseph of Wiley Rein in Washington, D.C. for the defendants.

The case is Luvdarts, LLC v. AT&T Mobility, LLC, 11-55497.


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