Ad Network Defeats Secondary Copyright Claims–ALS Scan v. JuicyAds

The plaintiff is this case is well-known pornographer/litigator ALS Scan. Today’s case involves an ad network, Tiger Media, which runs the JuicyAds network catering to pornography websites. ALS Scan’s real targets are alleged “pirate Internet sites” with names like;;;;;;;; and “Plaintiff alleges that it has sent 195 separate email notifications to JuicyAds with multiple examples of infringing ALS images on certain Publishers’ websites, but JuicyAds refuses to terminate these Publishers’ accounts.” ALS Scan also alleges it signed up a sting account with JuicyAds called “” with the headline ““Infringing ALS Photos Made Free,” but JuicyAds did not remove it from the network. (This account is strikingly similar to the Ninth Circuit’s hypothetical “” example in Perfect 10 v. ccBill–which ALS Scan chose to imitate even though ccBill was a defense win).

Tiger moved to dismiss the complaint. The court grants the motion.

Contributory Copyright Infringement. Tiger didn’t dispute the knowledge prong, but the court says that Tiger didn’t materially contribute to the infringement. Citing the Ninth Circuit’s Perfect 10 v. Amazon and Perfect 10 v. Visa cases, the court says:

although Advertisers are able to locate Publishers’ websites utilizing Tiger’s services, including infringing websites, the FAC fails to allege this contributes to the infringing activity. It is entirely unclear from the FAC how serving an advertisement on a website encourages infringement, other than by enabling the website to profit from those advertisements, a theory the Ninth Circuit expressly rejected in Visa.

The court also cites the directly-on-point defense win in Elesvier v. Chitika. In a footnote, the court distinguishes four precedents (all from 15+ years ago) cited by ALS Scan:

* Gershwin Publishing is distinguished because ALS Scan didn’t allege “Tiger created the market of users for the infringing websites or pervasively participated in the infringement.”
* Fonovisa is distinguished because ALS Scan didn’t allege “Tiger does not provide the site or facilities for the infringing websites, nor are there any allegations that it actively strives to provide the market for the infringing websites.”
* Perfect 10 v. Cybernet Ventures is distinguished because that case involved “the defendant web-service provider directly paid infringing websites based on the number of users that registered with the web-service provider through the infringing sites, provided technical and content advice to the infringing sites, and attempted to control the quality of the sites to present the websites’ consumers with a unified brand” and ALS Scan didn’t allege such “active” participation by Tiger.
* Napster is distinguished because ALS Scan didn’t sufficiently allege “how Tiger’s services enable infringement.”

Inducement failed because “the FAC does not allege that JuicyAds provides its advertising brokerage service for the purpose of promoting copyright infringement, or that it has directly encouraged Publishers to display infringing content on their websites.”

Vicarious Copyright Infringement failed as well. Tiger lacks the requisite control over infringement because it does not have “the legal right to stop the infringing websites.”

Implications. This is a SOPA-style lawsuit, targeting service providers to alleged pirate sites. While it’s nice to see the court reject it, this ruling rattled me a little. It’s been several years since I’ve read a SOPA-style lawsuit; and it’s been almost a decade since the Ninth Circuit’s troika of Perfect 10 rulings seemingly shut down the efforts to hold service providers liable for “pirate sites.” Yet, ALS Scan’s arguments–especially after the FTC v. LeadClick case–felt like they had become normalized in the interim. It’s a sign of how the caselaw has been quietly but progressively expanding the scope of potentially culpable defendants. SOPA may have failed, but lawsuits like this (targeting third party service providers) remind us that plaintiffs have a disturbingly high chance of exposing jurisprudential cracks eventually.

The opinion didn’t mention the 2013 “Best Practices Guidelines for Ad Networks to Address Piracy and Counterfeiting.” These guidelines were promulgated post-SOPA as a “voluntary” alternative to SOPA’s mandate, but I put the word “voluntary” in quotes because the Obama Administration leaned on major players to adopt the guidelines. There’s no evidence JuicyAds adopted the guidelines, and apparently the guidelines didn’t otherwise enter into the judge’s calculus. Indeed, I haven’t heard anything about the guidelines since their initial announcement in 2013 (which coincided with Victoria Espinel’s departure as IPEC, leaving the guidelines seemingly without an inside-the-beltway owner). If anyone has thoughts about whether the guidelines still have currency, I’d be grateful. Otherwise, I assume they have become a historical artifact.

Case citation: ALS Scan, Inc. v. Cloudflare, Inc., 2:16-cv-05051-GW-AFM (C.D. Cal. Oct. 3, 2016). The judge labeled this a “tentative ruling.”

Selected Related Cases on Ad Network Liability

Ad networks are liability magnets. Take a gander at this lineup of blog posts:

* Does the FTC Get a Free Pass From Section 230?–FTC v. LeadClick
* California’s Latest Effort To Keep Some Ads From Reaching Kids Is Misguided And Unconstitutiona
* The FTC’s New Kid Privacy Rules (COPPA) Are a Big Mess
* AdKnowledge Denied 47 USC 230 Immunity (Again)–Chang v. Wozo
* Ad Network Avoids Contributory Copyright Infringement for Serving Ads to a Rogue Website–Elsevier v. Chitika
* Ad Networks Ordered to Drop Allegedly Infringing Site–Elsevier v. eNom
* Ad Networks Can’t Get 47 USC 230 Defense on Motion to Dismiss–Swift v. Zynga
* Email Ad Network Isn’t Liable for Unsolicited Email–Ferron v. Echostar