The Ninth Circuit’s decision in Luvdarts, LLC v. AT&T Mobility, LLC drew a clear and important line between a platform that knowingly facilitates copyright infringement and one that simply provides a neutral communications channel. By holding that MMS—the Multimedia Messaging Service used for photo and video texts—is not a copyright infringement mechanism and that carriers cannot be held vicariously or contributorily liable merely for transmitting copyrighted MMS messages, the court reinforced the principle that secondary copyright liability requires more than passive participation in a communications network.
Luvdarts, a company that created proprietary greeting cards, stylized messages, and multimedia content distributed via MMS, sued Verizon, AT&T, and Sprint. Luvdarts alleged that these carriers were liable for vicarious and contributory copyright infringement because their networks allowed users to forward Luvdarts-created MMS messages to third parties without Luvdarts’ authorization.
The theory was ambitious: by providing the MMS infrastructure, the carriers were facilitating the unauthorized distribution of copyrighted content. Luvdarts’ licensing agreements with its customers restricted forwarding, but the carriers’ networks had no mechanism to enforce those restrictions.
A three-judge panel affirmed the district court’s dismissal of the case. The Ninth Circuit held that Luvdarts failed to state a claim for contributory copyright infringement because it had not adequately alleged that the carriers had the requisite knowledge of specific infringing activity.
The court stated directly: “Luvdarts’s conclusory allegations that the Carriers had the required knowledge of infringement are plainly insufficient.” General awareness that some users might be forwarding copyrighted MMS content is not the same as specific knowledge of particular infringing acts. Without specific knowledge, contributory liability cannot attach.
The court also rejected Luvdarts’ willful blindness argument. Willful blindness—the theory that a defendant deliberately avoided learning about infringement—requires more than failure to monitor; it requires affirmative steps taken to avoid learning about specific infringing activity. Luvdarts did not plausibly allege that the carriers had taken such steps.
The court further criticized the notice letters Luvdarts had sent to the carriers. Those notices were 150-page lists of every title Luvdarts had copyrighted, covering an 18-month period, without identifying any specific infringing acts. Such omnibus notices are legally insufficient to provide the specific knowledge required for secondary copyright liability.
The case provides a useful illustration of the difference between the two main theories of secondary copyright liability:
A defendant is contributorily liable if it knew of, or had reason to know of, specific infringing activity and materially contributed to that infringement. See Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996). The knowledge element is critical: actual or constructive knowledge of specific infringement, not general awareness that infringement might occur.
A defendant is vicariously liable if it had the right and ability to supervise infringing activity and received a direct financial benefit from the infringement. See Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304 (2d Cir. 1963). The Ninth Circuit has held that receiving a generally higher level of business activity does not constitute a direct financial benefit tied specifically to the infringement.
Luvdarts failed on both theories. The carriers neither had specific knowledge of particular infringements nor received financial benefits that were directly attributable to the forwarded Luvdarts messages as opposed to general MMS usage.
The Luvdarts decision confirms that communication carriers and online platforms do not become copyright infringers simply by providing a neutral infrastructure through which users transmit content. This is consistent with the DMCA safe harbor framework under 17 U.S.C. § 512, which protects conduit service providers that transmit material at the direction of users without modifying it.
Platform operators who want to maintain safe harbor protection should ensure they have a designated DMCA agent, a published takedown policy, and procedures for responding to specific, valid takedown notices. General copyright monitoring obligations do not exist absent specific knowledge triggers.
Revision Legal’s copyright attorneys advise carriers, platform operators, and content owners on secondary liability exposure and DMCA compliance. Contact us to discuss your copyright risk management strategy.
The Luvdarts case was decided at a time when the mobile ecosystem was far less complex than it is today. The emergence of smartphones, app stores, and social media platforms has created new questions about secondary copyright liability that the MMS carrier case did not fully address. When a platform enables users to share copyrighted content—through direct messaging, story sharing, or social feeds—the line between a neutral conduit and a contributory infringer depends on the same knowledge and material contribution analysis the Ninth Circuit applied in Luvdarts.
Courts have consistently held that general knowledge that some users share copyrighted content is not sufficient to establish contributory liability. The rights holder must demonstrate that the platform had specific knowledge of particular infringing acts and materially contributed to them. Automated notification systems, Content ID implementations, and DMCA agent infrastructure help platforms demonstrate good-faith responses to infringement while maintaining their safe harbor position.
The DMCA creates four separate safe harbor categories, each with distinct requirements. Section 512(a) provides the broadest protection—for transmitting or routing material through a network—and applies to pure conduit providers like the carriers in Luvdarts. Conduit providers receive safe harbor protection automatically for transmission, routing, and providing connections, without any knowledge requirement or need to respond to takedown notices.
This is the legal foundation for the Ninth Circuit’s decision in Luvdarts: MMS carriers function as conduits that transmit messages between users. They do not host or store the content (beyond transient storage necessary for transmission), do not select the recipients, and do not modify the content. A service that satisfies these conduit characteristics is protected by Section 512(a) regardless of what the transmitted content contains.
For businesses that distribute copyrighted content—music, video, images—via mobile applications or messaging systems, the Luvdarts analysis has a practical implication: the legal risk profile depends heavily on how the content is distributed. A pure messaging application that transmits user-generated content from sender to recipient is more likely to qualify for conduit safe harbor protection than an application that hosts content, recommends it to users, or enables discovery and browsing of shared material.
Rights holders who want to monetize their content in mobile ecosystems should focus on licensing agreements with the platforms through which their content is most widely distributed, rather than pursuing secondary liability theories against neutral conduits. The costs and uncertainty of litigation against carriers and conduit providers, as Luvdarts demonstrated, are high relative to the likelihood of success.
Revision Legal’s copyright attorneys advise content creators, rights holders, and platform operators on DMCA compliance, licensing strategy, and secondary copyright liability. Contact us today to discuss your copyright situation.
Revision Legal’s copyright attorneys advise both rights holders and platform operators on DMCA compliance and secondary liability. Contact us today.
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