In a case concerning the distribution of adult images, the United States Court of Appeals for the Ninth Circuit held, in conflict with various other Circuit Courts, that a defendant “profits from” direct infringement for the purposes of vicarious copyright liability only if a copyright owner can prove that the financial draw of the defendant’s service was a direct product of the availability of the plaintiff’s specific works. In other words, the Court held that it isn’t enough for a plaintiff to prove that the service facilitates the exchange of a substantial amount of infringing material that makes the service attractive to a large group of people. The Court further held that a defendant does not engage in direct copyright infringement when it displays, reproduces, or distributes infringing material, so long as that conduct is accomplished through an automated process.
The plaintiff, Perfect 10, appealed the Circuit Court’s decision to the Supreme Court in August 2017. In December 2017, SCOTUS denied cert.