The pirating of copyrighted music, videos, images, and other works on the Internet frequently occurs in foreign venues outside the reach of U.S. law, and on a massive scale by numerous users, all of which makes it impractical, if not impossible, for copyright owners to identify and pursue all potential infringers. As a result, copyright owners often direct their infringement claims against companies that are not the direct infringer, but against those entities that provide "services or products that facilitate access to websites throughout the world [that] can significantly magnify the effects of otherwise immaterial infringing activities," Perfect 10 v. Amazon.com, 508 F.3d 1146, 1172 (9th Cir. 2007) (amending and superseding on rehearing, 487 F.3d 701 (2007)), i.e., those who assist direct infringers to infringe. These suits are generally brought on theories of contributory copyright infringement.

Many of the decisions arising from suits including theories of contributory copyright infringement have come out of the Ninth Circuit Court of Appeals, as that court has held that a party may be liable when it "(1) has knowledge of another's infringement and (2) either (a) materially contributes to or (b) induces that infringement." Erickson Prods. v. Kast, 921 F.3d 822, 831 (9th Cir. 2019) (citation omitted).

This article focuses on the Ninth Circuit's decisions pertaining to the "materially contributes" standard in the context of Internet-based infringement claims. These decisions have spawned a number of rules and tests resulting in some confusion as to the applicable legal standards. Indeed, in two Ninth Circuit district court cases (from different districts) involving contributory copyright infringement claims against Cloudflare, an Internet service provider, the court employed different standards, reaching inconsistent conclusions based on ostensibly similar conduct.