Appellate Case: 21-4128 Document: 010110936535 Date Filed: 10/16/2023 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`October 16, 2023
`
`Christopher M. Wolpert
`Clerk of Court
`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`RUSSELL G. GREER,
`
` Plaintiff-Appellant,
`
`v.
`
`JOSHUA MOON, an individual;
`KIWI FARMS, a website,
`
` Defendants-Appellees.
`_________________________________
`
`
`
`
`
`No. 21-4128
`
`On Appeal from the United States District Court
`for the District of Utah
`Case No. 2:20-CV-00647-TC
`_________________________________
`
`Andrew Grimm of The Digital Justice Foundation, Omaha, Nebraska, for
`Appellant.
`
`Gregory Skordas of Skordas & Caston, LLC, Salt Lake City, Utah, for
`Appellees.
`
`_________________________________
`
`
`Before BACHARACH, MORITZ, and ROSSMAN, Circuit Judges.
`_________________________________
`
`ROSSMAN, Circuit Judge.
`_________________________________
`
`When he discovered his copyrighted book and song online, Plaintiff
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`Russell Greer sent a “takedown notice” to Defendants Joshua Moon and his
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`Appellate Case: 21-4128 Document: 010110936535 Date Filed: 10/16/2023 Page: 2
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`website Kiwi Farms, requesting the material be removed from the Kiwi
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`Farms site. See 17 U.S.C. § 512(c) (codifying notice-and-takedown process).
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`When Mr. Moon refused to remove the infringing material from Kiwi Farms,
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`Mr. Greer sued the Defendants for copyright infringement. The district
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`court granted the Defendants’ motion to dismiss, concluding Mr. Greer
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`failed to state a claim. Exercising jurisdiction under 28 U.S.C. § 1291, we
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`disagree, and reverse and remand for further proceedings.
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`I
`
`A
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`To “promote the Progress of Science and useful Arts,” the Constitution
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`empowers Congress to “secur[e] for limited Times to Authors and Inventors
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`the exclusive Right to their respective Writings and Discoveries.” U.S.
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`Const. art. I, § 8, cl. 8. Since 1790, Congress has effected this goal by
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`legislating to grant copyright holders a bundle of rights, including the use
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`and distribution of their copyrighted materials. See, e.g., Copyright Act of
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`1790, Pub. L. No. 1-15, 1 Stat. 124.
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`
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`Nearly fifty years ago, to address “significant changes in technology
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`affect[ing] the operation of the copyright law,” H.R. Rep. No. 94-1476, at 47,
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`Congress enacted the Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat.
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`2541 (codified at 17 U.S.C. § 101 et seq.). The Copyright Act of 1976 provides
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`“[a]nyone who violates any of the exclusive rights of the copyright owner”
`2
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`Appellate Case: 21-4128 Document: 010110936535 Date Filed: 10/16/2023 Page: 3
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`shall be “an infringer . . . .” 17 U.S.C. § 501(a); see also Sony Corp. of Am. v.
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`Universal City Studios, Inc., 464 U.S. 417, 433 (1984) (“Anyone who violates
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`any of the exclusive rights of the copyright owner, that is, anyone who
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`trespasses into his exclusive domain by using or authorizing the use of the
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`copyrighted work . . . is an infringer of the copyright.”) (internal quotation
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`marks, citations omitted). Under the same Act, those “exclusive rights”
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`include the rights “to reproduce the copyrighted work,” “to distribute copies
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`. . . of the copyrighted work to the public,” “to display the copyrighted work
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`publicly,” and “to perform the copyrighted work publicly by means of a
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`digital audio transmission.” 17 U.S.C. § 106(1), (3)–(6).
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`
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`While the Copyright Act itself does not “expressly render anyone
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`liable for infringement committed by another,” Sony Corp., 464 U.S. at 434,1
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`federal courts have long recognized and applied theories of secondary
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`liability, see Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S.
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`913, 930 (2005) (explaining “doctrines of secondary liability emerged from
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`common law principles and are well established in the law”). In applying
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`secondary liability to copyright infringement, the Supreme Court explained
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`the imposition of liability on those who have not themselves directly
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`1 But see H.R. Rep. No. 94-1476, at 61 (1976) (“Use of the phrase ‘to
`authorize’ is intended to avoid any questions as to the liability of
`contributory infringers.”).
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`3
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`Appellate Case: 21-4128 Document: 010110936535 Date Filed: 10/16/2023 Page: 4
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`infringed “is grounded on the recognition that adequate protection of a
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`[copyright] monopoly may require the courts to look beyond actual
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`duplication . . . to the products or activities that make such duplication
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`possible.” Sony Corp., 464 U.S. at 442.2
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`
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`There are several flavors of secondary liability for copyright
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`infringement.3
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`Vicarious liability attaches when the secondary infringer has “an
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`obvious and direct financial interest in the exploitation of copyrighted
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`materials” and “the right and ability to supervise” the direct infringer.
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`Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963);
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`see also Diversey v. Schmidly, 738 F.3d 1196, 1204 (10th Cir. 2013) (drawing
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`this test from the Second Circuit’s opinion in Gershwin Publishing Corp. v.
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`Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971)).
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`Vicarious liability has no knowledge requirement, based as it is on the
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`2 In Sony Corp. itself, however, the Court rejected a claim of secondary
`liability directed towards Sony’s distribution of videocassette recorders.
`Sony had neither advertised nor intended the VCR for infringement
`purposes. And since the VCR was capable of “commercially significant
`noninfringing uses,” the Court declined to attach liability based on the
`product’s capacity to be misused for infringement. 464 U.S. at 439, 442.
`
` Mr. Greer proceeded under a contributory infringement theory of
`liability, see RI.85 (“[Mr. Greer] isn’t claiming vicarious infringement,
`which is a completely separate issue from contributory infringement.”), but
`we discuss all three forms of secondary copyright infringement to emphasize
`certain elemental distinctions.
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` 3
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`4
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`Appellate Case: 21-4128 Document: 010110936535 Date Filed: 10/16/2023 Page: 5
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`common law doctrine of respondeat superior. Fonovisa, Inc. v. Cherry
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`Auction, Inc., 76 F.3d 259, 262 (9th Cir. 1996).
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`Under the inducement rule, the Supreme Court has held “one who
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`distributes a device with the object of promoting its use to infringe
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`copyright, as shown by clear expression or other affirmative steps taken to
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`foster infringement, is liable for the resulting acts of infringement by third
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`parties.” Grokster, 545 U.S. at 936–37. Inducement requires a showing of
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`“affirmative intent,” such as “active steps . . . taken to encourage direct
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`infringement” or “advertising an infringing use.” Id. at 936 (quoting Oak
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`Indus., Inc. v. Zenith Elec. Corp., 697 F. Supp. 988, 992 (N.D. Ill. 1988)); see
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`also id. at 937 (“The inducement rule . . . premises liability on purposeful,
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`culpable expression and conduct . . . .”).
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`Mr. Greer proceeds under a third theory, contributory liability (or
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`contributory infringement). Applying this theory in Diversey, we explained
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`“contributory liability attaches when the defendant causes or materially
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`contributes
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`to another’s
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`infringing activities and knows of
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`the
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`infringement.” 738 F.3d at 1204 (citation omitted); see also Grokster, 545
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`U.S. at 930 (“One infringes contributorily by intentionally inducing[4] or
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`4 “Although the traditional test for contributory infringement refers
`to inducement, inducement liability under the test articulated by the U.S.
`Supreme Court in MGM Studios, Inc. v. Grokster should be considered as
`5
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`Appellate Case: 21-4128 Document: 010110936535 Date Filed: 10/16/2023 Page: 6
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`encouraging direct infringement . . . .”) (citation omitted). From our holding
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`there, we identify three elements to a claim of contributory infringement:
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`(1) direct infringement (“another’s infringing activities”); (2) knowledge of
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`direct infringement (the defendant “knows of the infringement”); and (3)
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`contribution to direct infringement (“the defendant causes or materially
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`contributes”).
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`“One way of establishing contributory liability is by showing a
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`defendant ‘authorized the infringing use.’” Diversey, 738 F.3d at 1204
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`(quoting Softel, Inc. v. Dragon Med. & Scientific Comms., Inc., 118 F.3d 955,
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`971 (2d Cir. 1997)); see also 3 Melville B. Nimmer & David Nimmer, Nimmer
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`on Copyright § 12.04[A][3][a] (2023) (“[I]n order to be deemed a contributory
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`infringer, the authorization or assistance must bear some direct
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`relationship to the infringing acts, and the person rendering such
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`assistance or giving such authorization must be acting in concert with the
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`infringer.”).
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`B
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`
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`Mr. Moon owns and operates Kiwi Farms, a site “built to exploit and
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`showcase those Moon and his users have deemed to be eccentric and
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`analytically related but a distinct form of secondary liability.” 1
`E-Commerce & Internet Law § 4.11(3)(A) (2020).
`6
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`Appellate Case: 21-4128 Document: 010110936535 Date Filed: 10/16/2023 Page: 7
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`weird . . . .” RI.12-13.5 Many of Kiwi Farms’ targets are physically or
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`mentally disabled, RI.13 (quoting Mr. Moon describing “the mushmouthed
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`autistic people we make fun of”), and Mr. Greer himself suffers from a form
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`of facial paralysis. Kiwi Farms users allegedly “stalk and harass” these and
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`other individuals. RI.13. According to Mr. Greer’s complaint and request for
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`a preliminary injunction, Mr. Moon and Kiwi Farms users have been
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`implicated in three suicides, a school shooting in New Mexico, and a clash
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`with New Zealand authorities over information about terrorist attacks at
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`mosques in Christchurch.
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`
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`After he sued a well-known pop star in 2016, Kiwi Farms users turned
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`their attention to Mr. Greer and began “a relentless harassment campaign”;
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`this effort included “direct harassment via phone, email, and social media,”
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`“schemes that successfully got him fired from his workplace and evicted,”
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`and the creation of “false social media profiles that impersonate him with
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`names . . . that mock his physical and developmental disabilities.”
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`Appellant Br. at 19 (citing RI.13–15, ¶¶ 18–19, 21, 24, 28).
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`5 When reviewing a granted motion to dismiss, we draw the
`background from the complaint, accepting the facts alleged within as true.
`Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1123
`n.69 (10th Cir. 2017) (citing Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th
`Cir. 2016)).
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`Appellate Case: 21-4128 Document: 010110936535 Date Filed: 10/16/2023 Page: 8
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`
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`To “explain his side of things and to hopefully clear up the slander
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`surrounding him,” Mr. Greer wrote a book. RI.15. He self-published and
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`copyrighted the book, Why I Sued Taylor Swift and How I Became Falsely
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`Known as Frivolous, Litigious and Crazy, around November 2017. By
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`January 2018, Mr. Greer discovered “his book had been illegally put onto
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`Kiwi Farms.” RI.18. Under the title “Rusty’s Tale,” Kiwi Farms users
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`provided a Google Drive link to a full copy of Mr. Greer’s book. RI.18.
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`“[W]ishing to avoid litigation,” Mr. Greer sent Mr. Moon email “requests to
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`have his book removed.” RI.18. Mr. Moon refused the requests and then
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`“published [Mr. Greer’s] requests onto Kiwi Farms and explained there was
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`so ‘much wrong’ with [the] request for it to even be considered.” RI.18. Other
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`Kiwi Farms users “created unauthorized audio recordings of Greer’s books
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`and have put them on various sites,” including one user operating with the
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`hashtag “Spaz Face as a direct, discriminatory insult against Greer.” RI.19.
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`Through the Google Drive link, “anybody [can] view and . . . save” Mr.
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`Greer’s book “onto their devices”; Mr. Greer alleged this activity has
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`“purposely deprived Greer of making money . . . .” RI.19.
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`
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`After “his book had hit a snag because of the bad reviews” allegedly
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`left by Kiwi Farms users, Mr. Greer opted “to write a song because he felt
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`he could bring awareness better with a song.” RI.19. He “[i]nvest[ed] his
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`own money writing and producing the song with professionals . . . .” RI.19.
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`Appellate Case: 21-4128 Document: 010110936535 Date Filed: 10/16/2023 Page: 9
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`He registered his copyright to the song, I Don’t Get You, Taylor Swift, in
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`mid-April 2019.
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`
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`Within days, however, Mr. Greer discovered his new song had been
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`uploaded to Kiwi Farms. A Kiwi Farms user under the name “Russtard”
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`encouraged its dissemination on the site “so no one else accidentally gives
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`Russell [Greer] money.” RI.20.
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`Convinced now that Kiwi Farms users “willfully infringed on [his]
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`copyright” and “openly conspired to steal [his] works and deprive [him] of
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`money,” Mr. Greer “decided to prepare for legal action.” RI.20. Pursuant to
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`the procedures described in the Digital Millennium Copyright Act,6 on April
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`28, 2019, Mr. Greer sent the following takedown notice to Mr. Moon. The
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`notice
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`identified the
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`infringing material and the
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`location of the
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`“unauthorized and infringing copies . . . .” RI.201.
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`6 The Digital Millennium Copyright Act requires service providers to
`“‘expeditiously . . . remove . . . material that is claimed to be infringing,’ or
`disable access to it, whenever the service provider (1) receives a notice of
`infringing material on the service provider’s site or (2) otherwise becomes
`aware of the infringement or of circumstances making the infringement
`apparent.” Capitol Records, LLC v. Vimeo, LLC, 826 F.3d 78, 83 (2d Cir.
`2016) (quoting 17 U.S.C. § 512(c)(1)(C), (A)(iii)). The notice must identify
`the protected material and give the service provider “information
`reasonably sufficient to permit the service provider to locate the material.”
`17 U.S.C. § 512(c)(3)(A)(iii).
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`10
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`
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`On receipt, Mr. Moon published Mr. Greer’s notice onto Kiwi Farms,
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`along with Mr. Greer’s contact information. He replied to Mr. Greer’s email
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`“derid[ing] him for using a template,” RI.22, and said “he would not be
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`removing Greer’s copyrighted materials,” RI.23. Since that time, Mr. Greer
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`alleges Kiwi Farms “has continued harassing [him]” and has “continued to
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`exploit [his] copyrighted material,” including two additional songs and a
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`screenplay. RI.23.
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`C
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`
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`In September 2020, Mr. Greer sued Mr. Moon and Kiwi Farms in
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`federal district court
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`in Utah. He alleged contributory copyright
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`infringement under federal law and several claims under Utah law:
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`electronic communications harassment, false light, defamation, and
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`defamation by implication. He simultaneously moved for a preliminary
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`injunction enjoining Mr. Moon from operating Kiwi Farms during the
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`pendency of this case “and/or removing every webpage about Greer” from
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`the site. RI.41. As relevant to his contributory infringement claim, Mr.
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`Greer alleged:
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`Defendants have knowingly and willfully permitted, and
`continue to permit, the infringement of Greer’s works by
`materially contributing to the infringement by running and
`managing a website that allows users to steal and dump
`everything about Greer. Moon has even defended such action on
`his website’s FAQs page and has even explained to Greer
`through email why he believes he is allowed to infringe on his
`11
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`Appellate Case: 21-4128 Document: 010110936535 Date Filed: 10/16/2023 Page: 12
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`works, claiming Fair Use, and has posted the email conversation
`for many people to see and comment on, and in turn, harass
`Greer.
`
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`RI.29.7
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`
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`In April 2021, Mr. Moon and Kiwi Farms moved to dismiss for failure
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`to state a claim under Federal Rule of Civil Procedure 12(b)(6). As relevant
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`here, they contended Mr. Greer “has not alleged any facts that support an
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`inference that Defendants induced or encouraged any users of Kiwi Farms
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`to infringe on [Mr. Greer’s] copyright material before the material was
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`posted online.” RI.55.
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`
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`On September 21, 2021, the district court granted Mr. Moon and Kiwi
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`Farms’ motion to dismiss. The district court explained contributory
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`infringement required allegations of “(1) direct copyright infringement by a
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`third party; (2) the defendant knew of the direct infringement; and (3) the
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`defendant intentionally caused, induced, or materially contributed to the
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`direct infringement.” RI.134 (citation omitted). Applying those principles to
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`the complaint before it, the district court held:
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`Mr. Greer has sufficiently alleged prongs (1) and (2) of
`contributory copyright infringement. What is missing is the
`Defendants’ intentionally causing, inducing, or materially
`contributing to the
`infringement. It
`is not enough for
`contributory liability for a defendant to have merely “permitted”
`
`7 While alleging contributory infringement of later songs, Mr. Greer
`only sought damages for the book and the song I Don’t Get You, Taylor
`Swift, as “those works have suffered the most damage.” RI.29.
`12
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`Appellate Case: 21-4128 Document: 010110936535 Date Filed: 10/16/2023 Page: 13
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`the infringing material to remain on the website, without
`having “induc[ed] or encourage[ed]” the initial infringement.
`The Tenth Circuit has not held otherwise.
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`RI.135 (citation omitted) (alterations in original). Accordingly, the district
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`court dismissed the case.
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`
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`On October 26, 2021, the district court denied Mr. Greer’s Rule 59(e)
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`motion to alter or amend the judgment. Mr. Greer appealed to this court the
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`same day.
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`II
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`On appeal, Mr. Greer argues his pro se complaint, construed liberally,
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`adequately “alleged facts demonstrating [Mr. Moon and Kiwi Farms] had
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`knowingly induced, encouraged, and materially contributed to direct
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`infringements,” and so “stated a claim for contributory copyright
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`infringement” sufficient to survive a motion to dismiss. Appellant Br. at 26.
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`As we explain, we agree.
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`A
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`We review de novo the district court’s dismissal of Mr. Greer’s pro se
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`complaint under Rule 12(b)(6). Serna v. Denver Police Dep’t, 58 F.4th 1167,
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`1169 (10th Cir. 2023).8
`
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`8 While Mr. Greer proceeded pro se before the district court, he is
`counseled on this appeal.
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`13
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`
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`When deciding a Rule 12(b)(6) motion, a court “accept[s] as true all
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`well-pleaded factual allegations . . . and view[s] these allegations in the
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`light most favorable to the plaintiff.” Smith v. United States, 561 F.3d 1090,
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`1098 (10th Cir. 2009). At this stage, we “resolve all reasonable inferences”
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`in Mr. Greer’s favor. Morse v. Regents of the Univ. of Colo., 154 F.3d 1124,
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`1126–27 (10th Cir. 1998). Still, Mr. Greer’s complaint cannot rely on labels
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`or conclusory allegations—a “formulaic recitation of the elements of a cause
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`of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
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`Rather, his complaint “must contain sufficient factual matter, accepted as
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`true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
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`556 U.S. 662, 678 (2009). “When analyzing plausibility, a plaintiff’s
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`allegations are ‘read in the context of the entire complaint,’” Chilcoat v. San
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`Juan Cnty., 41 F.4th 1196, 1218 (10th Cir. 2022) (quoting Ullery v. Bradley,
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`949 F.3d 1282, 1288 (10th Cir. 2020)), and a plaintiff need only “nudge[]”
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`their claim “across the line from conceivable to plausible,” id. (quoting
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`Twombly, 550 U.S. at 570).
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`In the course of this review, we construe Mr. Greer’s pro se complaint
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`liberally and hold him “to a less stringent standard than formal pleadings
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`drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)
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`(citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). While we do not act
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`as Mr. Greer’s advocate, if we “can reasonably read the pleadings to state a
`14
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`Appellate Case: 21-4128 Document: 010110936535 Date Filed: 10/16/2023 Page: 15
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`valid claim on which the plaintiff could prevail, [we] should do so despite
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`the plaintiff’s failure to cite proper legal authority, his confusion of various
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`legal theories . . . or his unfamiliarity with pleading requirements.” Id.
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`B
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`
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`For his complaint to survive a motion to dismiss under a contributory
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`liability theory, Mr. Greer had to plausibly allege: (1) his copyrighted work
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`was directly infringed by a third party, (2) Mr. Moon and Kiwi Farms
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`“kn[ew] of the infringement,” and (3) Mr. Moon and Kiwi Farms “cause[d]
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`or materially contribute[d] to [third parties’] infringing activities.” Diversey,
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`738 F.3d at 1204.9 We address each in turn.
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`1
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`The district court correctly concluded Mr. Greer “sufficiently alleged”
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`“direct copyright infringement by a third party.” RI.134–35.
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`
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`Mr. Greer’s complaint alleged copyright violations related to his book
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`and music. Mr. Greer provided the registration numbers and effective dates
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`for both. RI.15, 17 (providing registration number of TX0008469519 and
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`registration date of October 2017 for the book); RI.19 (providing registration
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`number of SRu001366535 and registration date of April 2019 for the song).
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`He included certificates from the United States Register of Copyrights. And
`
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`9 Mr. Moon and Kiwi Farms appear to challenge only whether the
`complaint satisfies (3), the material contribution element.
`15
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`Appellate Case: 21-4128 Document: 010110936535 Date Filed: 10/16/2023 Page: 16
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`Mr. Moon and Kiwi Farms do not dispute these copyrights were validly
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`registered and their certificates appropriately issued pursuant to 17 U.S.C.
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`§§ 408–410.
`
`
`
`Recall, the Copyright Act grants copyright holders like Mr. Greer the
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`generally exclusive rights “to reproduce the copyrighted work in copies” and
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`“to distribute copies . . . of the copyrighted work to the public . . . .” 17 U.S.C.
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`§ 106(1), (3). Usually, when a third party reproduces or distributes a
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`copyrighted work without authorization, they infringe on the exclusive
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`rights of a copyright holder under 17 U.S.C. § 501.
`
`In his complaint, Mr. Greer alleged he discovered the book “had been
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`illegally put onto Kiwi Farms” in January 2018. RI.18. “Somebody,” he
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`explained, “created a copy of [his] book and put it in a Google Drive that is
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`accessible on Kiwi Farms.” RI.18. The complaint also included allegations
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`“[o]ther users on Kiwi Farms have created unauthorized audio recordings
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`of” the book “and have put them on various sites.” RI.19. Kiwi Farms, Mr.
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`Greer continued, “has links to these audio recordings.” RI.19. As to the song,
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`Mr. Greer alleged he found an “MP3 of his song was . . . on Kiwi Farms” in
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`April 2019. RI.20. A Kiwi Farms user posted the song with the comment
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`“Enjoy this repetitive turd.” RI.20. Another user commented, “Upload it
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`here so no one accidentally gives [Mr. Greer] money.” RI.20. The complaint
`
`
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`Appellate Case: 21-4128 Document: 010110936535 Date Filed: 10/16/2023 Page: 17
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`also alleged “Mr. Moon’s users spread Greer’s song across different sites.”
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`RI.21.
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`
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`Based on the complaint, we conclude, like the district court, Mr. Greer
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`plausibly alleged direct, third-party infringement of copyright under 17
`
`U.S.C. § 501.10
`
`
`10 On appeal, Mr. Moon and Kiwi Farms suggest the copyright
`infringement here may have been “for purposes such as criticism and/or
`comment” and is thus protected under the “fair use” limitation of 17 U.S.C.
`§ 107. Appellees Br. at 33. The paragraph discussion identifies the four
`factors in 17 U.S.C. § 107 but fails to explain what those factors are or why
`they apply here. We do not address this passing mention of a novel issue.
`See Day v. SkyWest Airlines, 45 F.4th 1181, 1192 (10th Cir. 2022) (declining
`“to consider [a] newly raised, inadequately briefed, and analytically
`complex issue in the first instance on appeal”).
`
`In any case, Mr. Moon and Kiwi Farms did not plead the affirmative
`defense of fair use, and, “[a]s a general rule, a defendant waives an
`affirmative defense by failing to plead it.” Burke v. Regalado, 935 F.3d 960,
`1040 (10th Cir. 2019) (citing Bentley v. Cleveland Cnty. Bd. of Cnty.
`Comm’rs, 41 F.3d 600, 604 (10th Cir. 1994)); see also Fed. R. Civ. P. 8(c)
`(explaining “a party must affirmatively state any avoidance or affirmative
`defense”).
`
`Perhaps to get around the bar of waiver, Mr. Moon and Kiwi Farms
`describe fair use as “more than an affirmative defense; the language of the
`statute makes it clear that fair use is not infringement at all.” Appellees Br.
`at 33 (citing 17 U.S.C. § 107). But we decline the invitation to transfigure
`fair use into an un-waivable defense. See Andy Warhol Found. for the Visual
`Arts, Inc. v. Goldsmith, 143 S. Ct. 1258, 1285 n.21 (2023) (explaining “fair
`use is an affirmative defense” and the party invoking it “bears the burden
`to justify its taking” of the protected work); id. at 1288 (Gorsuch, J.,
`concurring) (discussing a party’s invocation of “the affirmative defense of
`‘fair use’ to a claim of copyright infringement”).
`17
`
`
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`Appellate Case: 21-4128 Document: 010110936535 Date Filed: 10/16/2023 Page: 18
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`2
`
`
`
`The district court also concluded Mr. Greer “sufficiently alleged” “the
`
`defendant[s] knew of the direct infringement.” RI.134–35. Here, too, we
`
`agree.
`
`
`
`Mr. Greer’s takedown notices complied with 17 U.S.C. § 512(c)(3). A
`
`takedown notice under the DMCA needs to identify “the copyrighted work
`
`claimed to have been infringed” and “the material that is claimed to be
`
`infringing or to be the subject of infringing activity . . . .” 17 U.S.C.
`
`§ 512(c)(3)(A)(ii)–(iii). Here, Mr. Greer’s original email and DMCA notices
`
`identified the book and song protected by copyright, pointed to the locations
`
`on Kiwi Farms where these works were being copied and shared without
`
`authorization, and requested Mr. Moon, as site administrator, remove the
`
`infringing materials.
`
`While Mr. Moon debated the merits and style of Mr. Greer’s takedown
`
`notices—claiming in emails the infringements were protected under fair use
`
`and mocking the use of a “template” for the DMCA request—the complaint
`
`sufficiently alleged that Mr. Moon knew of the alleged direct infringement.
`
`3
`
`For contributory liability to attach, the final Diversey prong requires
`
`a defendant to “cause” or “materially contribute to” third-parties’ direct
`
`infringement. Diversey, 738 F.3d at 1204. The Supreme Court has described
`18
`
`
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`

`

`Appellate Case: 21-4128 Document: 010110936535 Date Filed: 10/16/2023 Page: 19
`
`“contributory infringers” as those who are “in a position to control the use
`
`of copyrighted works by others” and who “authorize[] the use without
`
`permission from the copyright owner.” Sony Corp., 464 U.S. at 437. As
`
`applied here, Mr. Greer was required to plausibly allege Mr. Moon and Kiwi
`
`Farms caused, materially contributed to, or authorized the direct
`
`infringement by Kiwi Farms users and other third parties of Mr. Greer’s
`
`book and song. We conclude he did so.
`
`The district court correctly explained the Diversey factors and rightly
`
`identified the liberal pro se pleading standard. Nevertheless, it dismissed
`
`Mr. Greer’s contributory infringement claim after concluding, “[w]hat is
`
`missing is the Defendants’ intentionally causing, inducing, or materially
`
`contributing to the infringement.” RI.135. “It is not enough,” the district
`
`court continued, “for a defendant to have merely ‘permitted’ the infringing
`
`material to remain on the website, without having
`
`‘induc[ed] or
`
`encourage[ed]’ the initial infringement.”11 RI.135 (citing Grokster, 545 U.S.
`
`at 930).
`
`
`11 The district court referenced an “initial infringement,” but we
`remain unsure what the district court meant by the addition of the
`qualifying “initial.” RI.135. Mr. Moon and Kiwi Farms claim the district
`court meant “Mr. Moon needed to have taken steps to encourage the initial
`infringement” by Kiwi Farms users. Appellees Br. at 33. We cannot
`understand “initial” to be a literal requirement supported by applicable law,
`otherwise contributory infringement liability would rarely, if ever, lie for
`ongoing, repeated infringements.
`
`
`
`19
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`

`

`Appellate Case: 21-4128 Document: 010110936535 Date Filed: 10/16/2023 Page: 20
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`On appeal, Mr. Greer contends he “sufficiently pleaded factual
`
`allegations of inducement” and encouragement. Appellant Br. at 46–52. Mr.
`
`Moon and Kiwi Farms reply they simply “allow[ed] an infringing use to exist
`
`on their website” and so cannot be “liable for the actions of [their] users,
`
`even if [they] knew about the alleged infringement.” Appellees Br. at 35.12
`
`We discern no error in the district court’s explanation that
`
`contributory liability requires more than “merely ‘permitting’ the infringing
`
`material to remain on the website.” RI.135. And we conclude Kiwi Farms
`
`and Mr. Moon accurately state the law when they argue “a website owner
`
`or operator must do something other than allow an infringing use to exist
`
`on their website.” Appellees Br. at 35.
`
`But these general principles of law are of little help here, where the
`
`record shows—and Mr. Greer’s complaint plausibly alleged—far more than
`
`
`12 The parties debate the meaning and applicability of the Ninth
`Circuit’s test for contributory infringement, as expressed in Perfect 10, Inc.
`v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) and A&M Records v.
`Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). Mr. Greer argues the district
`court erred in refusing to follow persuasive authority from a sister circuit
`and expressly urges this court to adopt the Perfect 10/Napster test.
`Appellant Br. at 32–34.
`
`Because we conclude the issue is resolved under controlling precedent
`in this circuit—including Grokster and Diversey—we express no view of the
`Ninth Circuit’s contributory infringement framework.
`20
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`
`
`

`

`Appellate Case: 21-4128 Document: 010110936535 Date Filed: 10/16/2023 Page: 21
`
`“a failure to take affirmative steps to prevent infringement . . . .” Grokster,
`
`545 U.S. at 939 n.12 (emphasis added).
`
`When Mr. Greer discovered the book had been copied and placed in a
`
`Google Drive on Kiwi Farms, he “sent Mr. Moon requests to have his book
`
`removed . . . .” RI.18. Mr. Moon pointedly refused these requests. RI.18. In
`
`fact, instead of honoring the requests, Mr. Moon posted his email exchange
`
`with Mr. Greer to Kiwi Farms, belittling Mr. Greer’s attempt to protect his
`
`copyrighted material without resort to litigation. RI.18–19.
`
`After the email request, Kiwi Farms users continued to upload audio
`
`recordings of Mr. Greer’s book, followed by digital copies of his song. When
`
`Mr. Greer discovered the song on Kiwi Farms, he sent Mr. Moon a takedown
`
`notice under the DMCA. Mr. Moon not only refused to follow the DMCA’s
`
`process for removal and protection of infringing copies, he “published [the]
`
`DMCA request onto [Kiwi Farms],” along with Mr. Greer’s “private contact
`
`information.” RI.22. Mr. Moon then “emailed Greer . . . and derided him for
`
`using a template for his DMCA request” and confirmed “he would not be
`
`removing Greer’s copyrighted materials.” RI.23. Following Mr. Moon’s
`
`mocking refusal to remove Mr. Greer’s book and his song, Kiwi Farms users
`
`“have continued to exploit Greer’s copyrighted material,” including two
`
`additional songs and a screenplay. RI.23.
`
`
`
`21
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`

`

`Appellate Case: 21-4128 Document: 010110936535 Date Filed: 10/16/2023 Page: 22
`
`Construing the pro se complaint liberally and drawing all reasonable
`
`inferences in Mr. Greer’s favor, we find Mr. Moon’s alleged conduct to fit
`
`within our understanding of material contribution.13 Mr. Greer sent
`
`repeated requests to Mr. Moon, identifying the materials on which he held
`
`the copyright, as well as where and how his rights were being infringed. Mr.
`
`Moon not only expressly refused to remove the materials, he mockingly
`
`posted the correspondence to Kiwi Farms. Under the circumstances, this is
`
`not the passive behavior of one “merely permitting” infringing material to
`
`remain on his site. Rather, we conclude a reasonable inference from the
`
`facts alleged is that the reposting of the takedown noti