• by Wendy Davis  @wendyndavis, March 25, 2013

A federal appellate court ruled on Monday that wireless carriers aren't liable when users allegedly infringe copyright by forwarding mobile greeting cards.

The decision, issued by the 9th Circuit Court of Appeals, affirmed a trial judge's dismissal of a lawsuit by Luvdarts against AT&T, Verizon, T-Mobile and Sprint. The appeals court ruled that Luvdarts, which sells MMS greeting cards, didn't prove that the carriers were in a position to police infringement by users. The court also ruled that the carriers didn't induce users to infringe copyright and weren't aware of specific acts of infringement by users.

“Because Luvdarts has failed to allege adequately that the carriers had the necessary specific knowledge of infringement, it cannot prevail on its claim of contributory copyright infringement,” a panel of the 9th Circuit wrote.

The case dates to 2010, when Luvdarts sued the carriers for allegedly contributing to users' copyright infringement. The company argued that recipients of its MMS greeting cards were forwarding them without permission. The messages came with notices that attempted to restrict sharing by users.

Luvdarts argued that it told the carriers about the alleged infringement by sending the types of notices outlined in the Digital Millennium Copyright Act. But the appeals court said those notices were too vague to meet the DMCA's standards. "The notices were 150-page-long lists of titles, apparently just a transcription of every title copyrighted by Luvdarts.”

The appellate judges added that Luvdarts' notices didn't include details about which titles were infringed, by whom or when. “These notices are indistinguishable from a generalized notification that infringement is occurring,” the court wrote.

Luvdarts also argued that the wireless carrier should have used technological measures to prevent people from forwarding the greeting cards. But the 9th Circuit said that Luvdarts didn't show that the carriers realistically could have implemented that kind of a system.

Internet legal expert Venkat Balasubramani says the decision marks a win for intermediaries. He adds that Luvdarts' major contention -- that networks should be liable when users share messages -- always seemed “like a tough case to make.”