Full opinion text
ORDER GRANTING PERFECT 10’S MOTION FOR PRELIMINARY INJUNCTION BAIRD, District Judge. I. INTRODUCTION This action springs from Perfect 10, Inc.’s (“Perfect 10”) allegations that defendant Cybernet Ventures, Inc. (“Cyber-net”), a corporation running a web-service called “Adult Check,” and other defendants infringe Perfect 10’s copyrights, violate Perfect 10’s trademark rights and otherwise engage in rampant unfair business practices. Currently before the Court is Perfect 10’s Request for a Preliminary Injunction, which requests relief against a variety of defendants. The Court has received Perfect 10’s motion, defendants Cybernet and Laith Alsarrafs oppositions, and Perfect 10’s reply. These briefs are supported by voluminous supporting papers (and the accompanying evidentiary objections). II. INITIAL EVIDENTIARY OBJECTIONS In support of its motion for a preliminary injunction, Perfect 10 submitted 117 exhibits attached to the declaration of Norman Zadeh, Ph.D. (“Zadeh Decl.”), 16 exhibits attached to the declaration of Daniel Farmer (“Farmer Decl.”) and 13 exhibits attached to the declaration of Jeffrey Mausner (“Mausner Decl.”). Perfect 10 supplemented these declarations with several others. Cybernet basically objects to every exhibit attached to the Zadeh and Farmer declarations, as well as two exhibits attached to the Mausner declaration. In addition Cybernet has raised objections to portions of declarations filed by Zadeh, Farmer, Mausner, Laurence Rudolph (“Rudolph Decl.”), Selma Rubin (“Rubin Decl”) and John Baruck (“Baruck Decl.”). Perfect 10 has also raised objections to evidence submitted by Cybernet. Perfect 10 objects to a single paragraph in the declaration of Timothy Umbreit (“Umbreit Decl.”) and to ten paragraphs in the declaration of Frederick Lane III (“Lane Decl.”). Before the Court makes its findings of fact under Federal Rule of Procedure 65, it will address these objections. It will do so, however, only in broad strokes. A. AUTHENTICATION OBJECTIONS The great bulk of Cybernet’s objections center on Perfect 10’s exhibits printed off of the internet. See Cybernet Evidentiary Objections (“Def.Obj.”) at 1-5. Cybernet argues these exhibits are insufficiently authenticated. See, e.g., id. at 1. In support, Cybernet points to two cases, United States v. Jackson, 208 F.3d 633, 637 (7th Cir.2000), cert. denied, 531 U.S. 973, 121 S.Ct. 416, 148 L.Ed.2d 321 (2000), and St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F.Supp.2d 773, 774 (S.D.Tex.1999). The Jackson court upheld the exclusion of certain web postings attributed to white supremacist groups because they were insufficiently authenticated. 208 F.3d at 638. As the court viewed the situation, the criminal defendant in the case had to show that the postings, in which these groups appeared to claim responsibility for a series of racist mailings, actually were posted by the groups, as opposed to being slipped on the groups’ web sites by the defendant, who was a skilled computer user. Id. The St. Clair court took a more extreme view over the admissibility of data taken from the United States Coast Guard’s online vessel database concerning the ownership of a vessel. 76 F.Supp.2d at 774. The court viewed the internet as “one large catalyst for rumor, innuendo, and misinformation,” stated that there was “no way” the plaintiff could overcome “the presumption that the information ... discovered on the Internet is inherently untrustworthy.” Id. The court then excluded the information as hearsay, rather than “relying on the voodoo information taken from the Internet.” Id. Although these out-of-circuit cases are informative concerning the potential pitfalls of internet-based documents, this Court must look to the Ninth Circuit for guidance. In United States v. Tank, 200 F.3d 627, 630 (9th Cir.2000), the Ninth Circuit addressed the admissibility of certain chat room logs. In Tank, the government initiated a prosecution against a child pornography suspect after a search of another suspect’s computer files revealed “recorded” online chat room discussions among members of an internet club focused on discussing, trading, and producing child pornography. 200 F.3d at 629. The recorder of these chat room discussions had deleted from his computer nonsexual conversations and extraneous material, such as date and time stamps. Id. The Tank court observed that the foundational requirement of authentication is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. See 200 F.3d at 630 (citing Fed.R.Evid. 901(a)). This burden is met when “sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity.” Id. (citations omitted). This . burden was met where the producer of the logs explained how he created the logs with his computer and stated that the printouts appeared to be accurate representations. Id. Additionally, the government established the connection between Tank and the chat room log printouts.- Id. The Court finds that Zadeh’s declaration adequately establishes the prima facie case for admissibility in claiming the exhibits attached to his declaration were either: 1)true and correct copies of documents produced by Cybernet in discovery (identified by a CV prefix); 2) true and correct copies of pictures from Perfect 10 Magazine or from Perfect 10’s website; or 3) true and correct copies of pages printed from the Internet that were printed by Zadeh or under his direction. Zadeh Decl. ¶ 7. Those webpages that fall under category (3) contain the internet domain address from which the image was printed and the date on which it was printed. Id. ¶8. The first category is covered by Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 n. 12 (9th Cir.1996) (discovery documents deemed authentic when offered by party-opponent). See also Orr v. Bank of America, NT & SA, 285 F.3d 764, 770-71, 777 n. 20 (9th Cir.2002) (citing to same). The second and third categories have met the prima facie burden because the declarations, particularly in combination with circumstantial indicia of authenticity (such as the dates and web addresses), would support a reasonable juror in the belief that the documents are what Perfect 10 says they are. See Tank, 200 F.3d at 630. Moreover, because computer printouts are the only practical method by which the allegations of the complaint can be brought before the Court and there is generally a reduced evidentiary standard in preliminary injunction motions, the Court finds that, as a general rule, Zadeh’s declaration is sufficient to establish the exhibits’ authenticity. This is particularly true with regard to e-mail communications attributed to Brad Estes. Mr. Estes’s deposition testimony establishes that it is part of his duties to respond to posts in Adult Check’s “webmasters lounge” and that he responds to emails from webmasters concerning aspects of Cybernet’s “Adult Check” program. Mausner Deck, Ex. C at 94-97. B. E-MAILS BETWEEN CYBER-NET EMPLOYEES AND THIRD PARTIES Cybernet does not object to the Court’s consideration of the communications purportedly made by Cybernet’s employees “if the Court were to accept Plaintiffs scanty authentication” but does object to consideration of the communications attributed to third parties on hearsay grounds. See Evid. Obj. at 3. The Court treats the communications attributable to Cybernet employees as party admissions and will accept the third party communications only insofar as they indicate notice of infringing or potentially infringing activity. See Fed.R.Evid. 801. C. PRINTOUTS FROM THE THIRD-PARTY WEBSITES Cybernet objects to the printouts from third-party websites as a violation of the rule against hearsay. See Fed.R.Evid. 801. To the extent these images and text are being introduced to show the images and text found on the websites, they are not statements at all — and thus fall outside the ambit of the hearsay rule. To the extent that Perfect 10 relies on directories and the like as assertions that the links provided actually connect to the subject matter claimed in the link, the Court finds the hearsay issue to be a closer question. The Court will deal with this issue, should it arise, on a case-by-case basis. As for any asserted connection between those sites and Adult Check (Cybernet), the Court finds the evidence of Cybernet’s business structure and the workings of Adult Check’s age verification program combined with statements identifying the individual websites as Adult Check sites are enough to establish the sites’ membership in the Adult Check program. This takes the various printouts outside the definition of hearsay, for this purpose. See Fed.R.Evid. 801(d)(2)(D). D.OBJECTION TO CHART Perfect 10 has prepared a chart (“Chart 1”) outlining examples of infringing conduct it claims has been or can be found on websites affiliated with “Adult Check.” Zadeh Deck, Chart 1. Cybernet argues that the Zadeh declaration has failed to adequately establish how the chart was compiled, fails to lay an adequate foundation and that its descriptions of exhibits are confusing or inaccurate. Evid. Obj. at 5. The Court finds these objections, as a general matter, to be without merit. The chart simply reiterates information found elsewhere, including the website where the information was found, the date of download, Perfect 10’s claimed infringement, a brief description, which copyright registration covers the claimed Perfect 10 images, and an assertion concerning rights of publicity. To the extent this information is found on the face of each exhibit it is unobjectionable. Further, any errors in describing the contents are' easily confirmed by visual inspection of the exhibits. Finally, Perfect 10 has provided information supporting its claimed copyrights and rights of publicity. The Court finds no reason to exclude Chart 1 and has found it a helpful reference in its review of the voluminous documents provided. E. REPLY EVIDENCE Perfect 10 has supplied the Court with a significant volume of reply evidence. Perfect 10 claims most of this evidence is directed at arguments made by Cybernet that this motion should be barred by lach-es or the doctrine of “unclean hands,” challenges to Perfect 10’s claims of copyright ownership, and Cybernet’s claims to be effectively policing the websites making use of the “Adult Check” brand. Cybernet moved ex parte for an order striking all this evidence, which the Court denied in a previous minute order. Nevertheless, for reasons that will become clear the Court has felt no need to consider any of this proposed rebuttal evidence, although isolated exceptions to this general rule will be noted as they appear. F. OBJECTIONS TO CYBERNET’S DECLARATIONS The Court sustains Cybernet’s objections to the Lane Declaration’s ¶¶ 70, 71, and 81, except to the extent they may be used as party admissions. III. FINDINGS OF FACT Pursuant to Fed. Rule of Procedure 52(a), the Court makes the following findings of fact: Perfect 10 1. Plaintiff Perfect 10, Inc. (“Perfect 10”) was formed in 1996 by Norman Zadeh, who has occupied the post of Chief Executive Officer (“CEO”) since Perfect 10’s formation. Zadeh Deck, ¶ 2. 2. Mr. Zadeh received his Ph.D. in Operations Research in 1972, spent some time working in IBM’s computer research department, and has taught applied mathematics as a visiting professor at Stanford, UCLA, U.C. Irvine, and Columbia Universities. Id., ¶¶ 3,4. 3. Armed with a single idea — that there was a market for “classy” pictures of nude women without breast implants, cosmetic surgery, or the like — Perfect 10 was formed. Jenal Deck, Ex. L at 94. 4. Although Mr. Zadeh did not prepare a formal business plan before launching Perfect 10, he had some idea of the costs involved and an idea of how the magazine would develop. Id. at 93; Request for Judicial Notice, Ex. 1 (“Bacon’s article”) at 4. 5. Since Perfect 10’s formation, it has built its circulation up to approximately 90,000 issues. Zadeh Deck, ¶ 9. 6. Perfect 10 created a website, Per-fectl0.com, in 1996. Id. 7. PerfectlO.com receives about 100,-000 visitors each month. Id. There is no indication how many paid subscribers Perfectl0.com has attracted. 8. Perfect 10’s first magazine was published in 1997. Jenal Decl., Ex. L at 97. 9. Since Perfect 10’s inception it has created approximately 3,000 photographic images. Zadeh Decl., ¶ 12. 10. Perfect 10 sells memberships allowing access to Perfectl0.com at a rate of $25.50 per month to persons 18 years and older. Id., ¶ 13. 11. Despite Perfect 10’s costs per individual picture rising into the thousands of dollars, Perfect 10 has not been profitable. See Je-nal Decl., Ex. L at 97-101. The company is now losing approximately $4 to $5 million per year. Id. at 101. 12. Some of this loss was anticipated by the CEO, Mr. Zadeh, although in retrospect those estimates were low. Id. at 95; Bacon’s Article at 4-5. In an August 1997 interview, Mr. Za-deh, said that he planned to publish the magazine six times a year at $6.95 per issue. Bacon’s Article at 5. For the interview, he stated that he’d be happy losing $500,000 a year, but that he felt he could expect to break even with a few issues. Id. At the time, he felt that the magazine would begin attracting advertisers when circulation reached 150,000 to 200,000 copies. Id. 13. Perfect 10 lost an estimated $700,000 per issue for the two issues it published in 1997. Je-nal Decl., Ex. L at 99. In 1998, Perfect 10 published four issues and estimates losses around $500,000 per issue. Id. at 100. 14. In addition to its website and magazine, Perfect 10 has also produced calendars and model of the year videotapes. Id. at 101. Age Verification Services 15. The online-pornographic industry faces the constant threat of litigation and regulation stfemming from a variety of fears, including access by under-age users and violations of obscenity laws, including those against child pornography, bestiality and other such subjects that the government identifies and chooses to regulate. See, e.g., Lane Decl. ¶¶ 25, 44. 16. Age verification services (“AVS”) are meant to provide some level of reassurance to all involved. 17. An AVS places a computer script on individual webpages or websites. Farmer Decl., ¶ 15. When a visitor hits a page containing the script, it provides a prompt before allowing the visitor to view the page or other pages on the site. Id. AVS services sell passwords to consumers so they can gain access to materials on participating websites. Lane Decl., ¶ 47; Farmer Decl., ¶ 13. 18. Although not a perfect screen, the credit card is a relatively strong proxy for identifying those who are 18 or older. Lane Decl., ¶ 46. AYS and Credit Card Billing 19. The growth of the online-pornographic business has been a boon to credit card companies. Lane Decl. ¶ 32. At the same time, credit card companies have had problems with a phenomenon called chargebacks as they relate to online adult businesses. Id. ¶¶ 51, 52. 20. Chargebacks are requests for reversals of credit card charges and are often tied to customer . complaints. Id. ¶ 51. Master-card and Visa have established strict limits on the percentages of chargebacks they will tolerate from any one account. Id. ¶ 52. Merchants exceeding those limits are heavily fined and may lose their merchant processing accounts. Id. Cybernet Ventures, Inc. 21. Cybernet Ventures, Inc. (“Cyber-net”) runs an AVS called “Adult Check.” Lane Decl., ¶ 46. Cy-bernet, through its Adult Check brand, bills itself as the leading AVS on the Internet. Id. ¶ 48. Adult Check claims to have approximately 300,000 “regular” sites and 14,000 “Gold” sites using its service. Umbreit Decl., ¶ 24. 22. Based on Adult Check’s image requirements, it estimates that there are over 20 million images available on participating web sites. Id. On an average day, Cybernet authenticates an average of 1.9 million Adult Check IDs. Id. ¶ 12. Adult Check’s Internal Organization 23. Individual “webmasters” run the websites that make up the Adult Check “network.” See, e.g., Lane Decl., ¶ 58. These webmasters are not charged to use the Adult Check service. Um-breit Decl., ¶ 7. 24. Each webmaster is responsible for running the website, including creating the -site’s content, finding a server to host the site and other technical details, as well as promoting the site. Lane Decl., ¶¶ 34-36. 25. When a new user visits one of these sites, they are directed to Cybernet’s site on adult-check.com to register with Adult Check. Farmer Decl., ¶ 14; Umbreit Decl. ¶¶ 9,10. 26. Cybernet has two tiers of membership available, a “regular” membership and an “Adult Check Gold” membership. See, e.g., Umbreit ¶ 24. For $19.95 every three months, a regular member receives access to all sites using the AVS, except for the Gold sites. Zadeh Deck, Ex. 1 at 2. The Gold sites contain more images, more diversity, and generally meet more criteria aimed at ensuring these sites are higher-quality than those available to “regular” members. See, e.g., Zadeh Deck, Ex. 1 at 19-20 (contrasting requirements); Um-breit Deck, ¶ 22. The Gold memberships are more expensive and provide access to all the websites classified as Adult Check Gold (approximately 14,000 sites) for a price of $19.95 per month. Za-deh Decl., Ex. 4. 27. All fees paid by these members go directly to Cybernet. On a semi-monthly basis Cybernet then pays each individual webmaster a commission attributed to the site where the member originally signed up for his or her Adult Check membership. Umbreit Decl., ¶ 13; Zadeh Deck, Ex. 1 at 8-10. 28. There are two main factors driving an AVS service’s success, the quantity of images available on the participating websites and their quality. See Lane Decl., ¶ 54; Umbreit Decl. ¶ 22. There is also a need to prevent a redundancy of similar sites because this dilutes the experience of viewers, increasing dissatisfaction with a service and increasing the likelihood of users leaving the service or requesting charge-backs. Lane Decl., ¶ 57; Zadeh Decl., Ex. 1 at 21. 29. Adult Check has a financial incentive to insure that the participating websites are numerous, somewhat distinctive and contain images that attract users. As a result Adult Check has adopted a variety of guidelines concerning the content provided by the websites using its name and services. Zadeh Decl., Ex. 1 at 15-24. 30. Adult Check has divided up its websites into six tiers. They are as follows: Tier 1. Adult Check exclusive sites with only Adult Check ads or no ads at all; Tier 2. Adult Check exclusive sites with both Adult Check ads and non-Adult Check ads; Tier 3. Adult Check Exclusive sites with non-Adult Check ads. Tier 4. Non-exclusive sites with only Adult Check ads or no-adds ad all; Tier 5. Non-exclusive sites with both Adult Check ads and non-Adult Check ads; Tier 6. Non-exclusive sites with non-Adult Check ads. Each tier involves greater value for users along a spectrum defined by greater commitment to the Adult Check brand. See Zadeh Decl., Ex. 1 at 16. 31. Cybernet views sites and assigns keywords to further efficiency of an internal search engine that it provides as a service to consumers. Zadeh Deel., Ex. 12 at 63. 32. Part of Cybernet’s Adult Check service is a linking service found on adultcheck.com. Cybernet provides links to various webpag-es organized by category, including categories devoted to celebrity sites. See, e.g., Zadeh Decl., Exs. 72 & 81. 33. Adult Check also provides a search function that searches for content within the Adult Cheek affiliated websites and webpages. Umbreit Decl., ¶ 17. Adult Check Policies 34. Adult Check has also endorsed a number of “General Policies,” including: 1) Any unlawful activities or activities that, within the sole and absolute discretion of Adult Check may be or are harmful to its reputation, image, goodwill (including but not limited to inappropriate Usenet postings or spamming) will result in immediate termination; 2) Illegal content is strictly prohibited. Illegal content includes, but is not limited to: minors, rape and bestiality; 3) Fraud, illegal activities, unfair or deceptive trade practices or violation of the Adult Check Policies will result in immediate termination of your account; and 4) Violation of the Adult Cheek limited use license of trademarks and copyrighted materials is prohibited. Zadeh Decl., Ex. 1 at 13. 35. Adult Check also has a policy related to its Links Page, which leads Adult Check users to various sites and webpages by providing a directory organized by category. In order to be listed on the Links Pages: 1) A site may not display, publish, link to or provide access to any images, pictures, stories, video clips or any other media portraying any content that is deemed illegal in the United States. Any site containing content deemed illegal in the United States will be removed from the Links Page and the account will be deactivated; 2) Each Adult Check Site must contain unique, quality and adequate content. The quality, uniqueness and adequacy of the content is solely within the discretion of AC, but generally means at least 30 pictures of sufficient quality to provide value to the Adult Check customer. These guidelines are loose and subjective to insure that there is a definite benefit for the Adult Check customers without requiring them to pay extra fees; 3) A participating site must be placed in the appropriate category of the Links Pages and the description of the site must be accurate. Any deceptive information is grounds for removing the site from the Links Page. 4) Site names and site descriptions must not be false, misleading or deceptive. 5) Multiple sites owned by the same person or entity must be designed as individual sites and may not be listed more than once. 6) Feeder sites must also comply with the minimal standards. 7) Membership sites requiring further membership fees must provide content before an Adult Check customer is required to pay any fees. 8) The webmaster is responsible for providing all content. Cybernet disclaims any responsibility for content. 9) All sites are reviewed and monitored for continued compliance. 10) Each site submitted must be unique. Templated sites will not be accepted for placement on the links page. Templated sites are defined as two or more sites that are created or appear to the viewer as substantially identical, despite minor variations such as site title. 11) The use of any registered trademark, trade name, copyright or exclusive publicity right without proper authority or written consent of the owner, will not be permitted on any Adult Check site, violation of this policy will, among other things, result in the removal of the violating site from the Links pages and the termination of the website’s affiliation with Adult Check. Zadeh Decl., Ex. 1 at 15,16. 36. Adult Check also has a Child Pornography policy. Adult Check classifies its Child Pornography policy as “zero tolerance.” This policy is enforced anywhere images, words or inferences relating to child pornography are used in conjunction with the Adult Check system. Adult Check explicitly states: “This is not limited to sites linked to from our links pages,” thus implying it applies to all content accessed through the use of Adult Check passwords. When this policy is violated, the site will be closed, removed from the Adult Check system without warning, the limited use license for the Adult Check script will be revoked and the offender must remove all links and references to Adult Check from the offender’s sites, presumably going beyond the single webpage or site where the offending material appears. Za-deh Deck, Ex. 1 at 14, 15 (emphasis added to quote). 37. Prior to August 8, 2001, Cyber-net’s policy on copyright and trademark violations was self-characterized as “neutral.” In an email, one employee put it this way: If Webmaster A contacts us and says that Webmaster B is violating his or her copyrights or trademarks we will do one thing and one thing only. Adult Check will forward an email from Webmaster A to Webmaster B. It is then Webmaster B’s responsibility to reply to Webmaster A and solve the matter. It would never be a good idea for Adult Check to take any other stance in these matters. Doing so would open a huge amount of legal liability due to the possibility of error. Webmaster A could be lying and Webmaster B could have designed the site first and it could have actually been Webmaster A who copied it! This is why we stay neutral. Zadeh Deck, Ex. 20 at 240; see also Mausner Deck, Ex. C at 97. 38.Since August 8, 2001, Cybernet has promulgated a copyright policy labeled “Digital Millennium Copyright Act (‘DMCA’) policy”. Under this policy, a notice of infringement sent to Cybernet must include: 1) A physical or electronic signature of the owner or a person authorized to act on behalf of the owner; 2) An identification of the copyrighted work and if it is located on a web page, the specific address of the web page should be provided; 3) ID of the material that is claimed to be infringing or the subject of infringing activity; and 4) a statement of good faith belief that use of the material is not authorized by the copyright owner, its agent or the law. According to Cybernet’s “DMCA Policy”, upon receipt of a written notification meeting all of its.criteria, Cybernet will: 1) act expeditiously to remove links or disable access to the allegedly infringing material; 2) take reasonable steps to promptly notify the accused subscriber; and 3) forward a copy of the written notification to the accused subscriber. This policy then provides for a counter notification procedure to be used by webmasters accused of infringement. Finally, “in appropriate circumstances where [Cybernet] receives multiple notices, subscribers to [its] age verification services will be terminated.” Zadeh Decl., Ex. 1 at 21-24. 39. There is no credible evidence that Cybernet actively enforces its “DMCA policy.” Rather there is evidence that four months after the policy became effective and well after this action had begun, clearly infringing pictures were on websites identified by Perfect 10 in its Second Amended Complaint, see Zadeh Decl., Ex. 76, as well as blatantly infringing pictures on sites listed in the Third Amended Complaint, see Zadeh Decl., Ex. 31. Conduct by Adult Check Affiliated Websites 40. Sites affiliated with Adult Check have engaged in a range of conduct, of which a representative sample includes: 41. On August 6, 2001, a website affiliated with Adult Check, named FemCelebs and located at ani-mald.com, contained identical copies of at least three Perfect 10 magazine covers. Zadeh Decl., Ex. 8. Perfect 10 was assigned rights of publicity by the pictured models. Zadeh Decl., Ex. 117 42. On December 19, 2001, another Adult Check affiliated website, Celebrities Online, located at www.celebs-online.com, displayed identical copies of several photographs containing pictures derived from the Perfect 10 magazine and Perfect 10’s website. The pictured model had assigned her rights of publicity to Perfect 10. Several of the pictures contained the words Perfect 10 as well as a Perfect 10 copyright notice. Zadeh Decl., Ex. 31. 43. On December 20, 2001, another site affiliated with Adult Check, Before & After, located at joe-bosco.com, displayed identical pictures derived from Perfect 10’s magazine and containing models who had assigned their rights of publicity to Perfect 10. Zadeh Decl., Ex. 38. 44. On December 22, 2001, fredd38.com, part of the websites owned by defendants FTV, ftv. net, Vic Toria, and AEI Productions (collectively, “the FTV defendants”), and affiliated with Adult Check, displayed a picture purporting to be Christina Aguil-era posing topless, but actually contained a photograph of a Perfect 10 model found on its website, altered by adding Ms. Aguil-era’s head. Zadeh Decl., Ex. 46. This model had assigned her rights of publicity to Perfect 10. 45. On December 11, 2001, the website located at celeblust.com, also owned by the FTV defendants, displayed a picture purporting to be a topless Faith Hill, but the site actually contained a digitally altered image of a Perfect 10 model. Zadeh Decl., Ex. 57 46. These examples are not isolated and Perfect 10 has found more than 10,000 copies of Perfect 10 images on approximately 900 websites affiliated with Adult Check. Zadeh Decl., ¶ 46. Defaults Entered 47. Sean Devine has had a default entered against him based on Perfect 10 images and models displayed on the website Babe-sofBablyon.com. See-Zadeh Decl., Ex. 115. 48. Default has been entered against defendants Funet, Inc. and AEI Productions, Inc. See Zadeh Decl., Ex. 116 & Ex. 114. Extent of Problematic Images and Sites 49. A significant number of the images found on websites affiliated with Adult Check consist of images: 1) containing celebrities who have not consented to .the use of such images; 2) containing the heads of celebrities superimposed on other models, including Perfect 10 models; 3) displaying images identical to those protected by Perfect 10’s copyrights; 4) displaying Perfect 10’s trademarks; 5) displaying copies of Perfect 10’s images with another identifying mark placed on the image; and 6) containing images of models who have assigned their rights of publicity to Perfect 10. 50. Celebrity websites make up approximately 4,000 of the 314,000 websites affiliated with Adult Check. They may make up as many as 2,000,000 of the images found on the Adult Check affiliated sites. Umbreit Decl. ¶ 19. 51. Some of these websites identify themselves as “fake.” Zadeh Decl., Ex. 107. 52. Some of these websites portray graphic scenes and create the impression that the celebrities mentioned are affiliated with the action presented. 53. Cybernet chooses which websites are placed in the celebrity category. Notice to Cybernet of Problems on Affiliated Sites 54. Cybernet was provided with notice of 18 celebrities that objected to usage of their identities and/or images on Adult Check affiliated sites back in November 27, 2000. Zadeh Reply Decl. (“Zadeh Decl. II”), Ex. 19 at 267. 55. On January 7, 2002, Perfect 10 provided a number of declarations to the Court from celebrities, generally providing: I have not licensed any pornographic website or any affiliate of such website to sue or exploit my name, likeness or identity. In general, I do not want any entity to use or exploit my name, likeness or identity, without my express written permission, or the permission of my manager or someone with the authority to act on my behalf. Aguilera Decl. 56. In order for a site to be accepted into the Adult Check system, Cy-bernet reviews the site. Zadeh Decl., Ex. 30 at 287a. 57. Among the considerations in reviewing these sites, Cybernet looks for potentially underage images and overuse of celebrity images. Id. at 287b 58. On February 27, 2001, three months after a group of celebrities provided Adult Check with direct notice that use of their images was not allowed, an Adult Check employee refused to accept a site, stating: Please make sure that your site does not have any of the following models in its principal content [inch models listed in request] .... This content cannot be allowed since it would continue to oversaturate our links page. Zadeh Deck, Ex. 30 at 287b (emphasis added). 59. Generally, Cybernet considers an image to be oversaturated if it appears 7 to 10 times. Id., Ex. 1 at 21; Ex. 30 at 287b. 60. Cybernet has a staff of twelve that reviews sites when they initially join Adult Check, with a goal of doing monthly reviews, and the staff also does spot checking. Mausner Deck, Ex. C at 102,114. 61. Cybernet actively reviews and directs affiliated webmasters on the appearance and content of their sites. Zadeh Deck, Ex. 30. 62. Cybernet provides Adult Check webmasters with a variety of tools to help them develop then-websites. See, e.g., Zadeh Deck, Exs. 1,18. 63. Adult Check’s Knowledge Base does not discuss protection of copyrights, trademarks or publicity rights. See Zadeh Deck, Ex. 18. IV. CONCLUSIONS OF LAW 1. There is not a serious question on the merits concerning Cybernet’s liability for direct copyright infringement of Perfect 10’s copyrights. 2. There is a strong likelihood of success for Perfect 10’s contributory copyright infringement claims against Cybernet. 3. There is a strong likelihood of success for Perfect 10’s vicarious copyright infringement claims against Cybernet. 4. There is a substantial question whether or not Cybernet is a provider of online services under the Digital Millennium Copyright Act (“DMCA”). 5. If Cybernet qualifies as an online service provider under the DMCA there is little likelihood that any DMCA “safe harbor” will apply. 6. There is not a strong likelihood of success on Perfect 10’s direct liability claims against Cybernet for violating the models’ publicity rights assigned to Perfect 10. 7. There is a strong likelihood of success on Perfect 10’s claims of aiding and abetting liability for Cy-bernet’s role in the violations of the publicity rights assigned to Perfect 10. 8. Perfect 10 has standing to assert as an unfair business practice the abuse of publicity rights for those persons who have provided Cyber-net with actual notice that use of their images is not authorized. 9. There is a strong likelihood of success on Perfect 10’s claim that Cybernet has violated California’s unfair business practices act by violating the rights of publicity for those persons who have provided Cybernet with actual notice that use of their images is not authorized. 10. There is not a strong likelihood of success on Perfect 10’s claims that Cybernet is liable for contributory trademark infringement of Perfect 10’s trademark rights. 11. Cybernet has not made a good faith effort to root out illegal conduct among its webmasters and gains direct financial gains as a result. 12. Cybernet is a competitor of Perfect 10’s. 13. There is a strong likelihood that Perfect 10 will prevail on its claim that Cybernet’s practices are “unfair” under the unfair business practices act. 14. The unclean hands and laches doctrines are not applicable to this motion. 15. Harm is presumed for unfair competition, violations of copyright, and for trademark infringement. 16. Perfect 10 has shown a strong likelihood that it will suffer irreparable harm if the unfair business practices, copyright violations, and trademark violations are not enjoined. 17. Enjoining these practices is consistent with the public interest. 18. Enjoining these practices will not result in an inequitable burden on Cybernet. 19. The balance of hardships tips in favor of Perfect 10. V. PRELIMINARY INJUNCTION STANDARDS In the Ninth Circuit, two interrelated tests exist for determining the propriety of the issuance of a preliminary injunction. Under the first test, the Court may not issue a preliminary injunction unless: (1) the moving party has established a strong likelihood of success on the merits; (2) the moving party will suffer irreparable injury and has no adequate remedy at law if injunctive relief is not granted; (3) the balance of hardships tips in favor of the movant; and (4) granting the injunction is in the public interest. See Martin v. Int’l Olympic Comm., 740 F.2d 670, 674-75 (1984); Greene v. Bowen, 639 F.Supp. 554, 558 (E.D.Cal.1986). Under the alternative test, a plaintiff must show either (1) a combination of probable success on the merits and the possibility of irreparable injury; or (2) that a serious question exists going to the merits and that the balance of hardships tip sharply in the plaintiffs favor. See First Brands Corp. v. Fred Meyer, Inc., 809 F.2d 1378, 1381 (9th Cir.1987). The two tests represent a continuum of equitable discretion whereby the greater the relative hardship to the moving party, the less probability of success must be shown. See Regents of Univ. of Calif. v. ABC, Inc., 747 F.2d 511, 515 (9th Cir.1984). See also Benda v. Grand Lodge of Int’l Ass’n of Machinists, 584 F.2d 308, 315 (9th Cir.1978). VI. LIKELIHOOD OF SUCCESS A. COPYRIGHT INFRINGEMENT 1. Direct Infringement To prove copyright infringement, a plaintiff must prove two elements: (1) ownership of a valid copyright, and (2) copying of protectable expression by the defendant. Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir.1987). Infringement occurs when a defendant violates one of the exclusive rights of the copyright holder. 17 U.S.C. § 501(a). Direct infringement does not require intent or any particular state of mind, although willfulness is relevant to the award of statutory damages. 17 U.S.C. § 504(c). a. Does Perfect 10’s Registered Copyright In Its Magazines Cover The Individual Pictures Involved Here? Cybernet’s first line of defense is to challenge the adequacy of Perfect 10’s showing of copyright protection for its claimed images. Opp’n at 18. Cybernet contends that the copyright registrations produced in this motion involve collective works, the Perfect 10 magazines and the Internet site, but the registrations do not establish copyrights in the individual pictures. Opp’n at 18. Cybernet’s only authority is a quote to 17 U.S.C. § 103(b) which provides: The copyright in a compilation or derivative work extends only to the material contributed by the author of such work and distinguished from the preexisting material employed in the work and does not imply an exclusive right in the preexisting material. The copyright in such work is independent of, and does not alter or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. 17 U.S.C. § 103(b). It is unclear exactly what Cybernet is challenging — Perfect 10’s ability to bring suit under the Copyright Act, the scope of the registrations, the entitlement to the presumption of prima facie validity as to the copyright registration, or directly challenging Perfect 10’s claimed copyright in these images. As an initial matter, where the owner of a copyright for a collective work also owns the copyright for a constituent part of that work, registration of the collective work is sufficient to permit an infringement action under 17 U.S.C. § 411(a). Moreover, the Court finds that Perfect 10 is entitled to treat the copyright registrations as prima facie evidence that the individual pictures are copyrighted. See Autoskill, Inc. v. National Educ. Support Sys., Inc., 994 F.2d 1476, 1487-88 (10th Cir.1993), disagreed with on other grounds, Parker v. Bain, 68 F.3d 1131, 1136 n. 8 (9th Cir.1995); cf. 17 U.S.C. § 404 (similar principle with regard to reach of copyright notice in collective work). Perfect 10’s copyright registrations for the magazine issues indicate that they are collective works where contributions to the work were works “made for hire.” See, e.g., Mausner Deck, Ex. A at 9. The website registration recognizes that the two-dimensional text and photographs on the site include contributions made for hire and incorporate photographs published in the Perfect 10 magazine. Id. at 7-8. The Court concludes this is sufficient to raise the presumption of validity, particularly where Cybernet has made no sustained argument to the contrary. Per feet 10 has shown a strong likelihood that it owns a valid copyright in the identified images. b. Has Cybernet Violated Any of Perfect 10’s Rights Under the Copyright Act? Cybernet’s other argument fares better. Cybernet contends that it cannot be held directly liable for any copyright infringement carried out by its affiliated websites because “no infringing files exist on any computer equipment owned by Cybernet.” Opp’n at 19. Perfect 10 does not address this argument in its reply papers and the Court finds that there is little likelihood of success on this claim; Assuming that websites on the Adult Check system infringe Perfect 10’s copyrights, there is no evidence that Cybernet owns any of these websites or otherwise -engages in directly infringing activity in the classic sense. There might exist another route to direct liability, however. Computer technology, and in particular the Internet, has created a challenge to copyright’s strict liability scheme. Because of the architecture of the web and the workings of computer technology, almost any business that utilizes computer hardware to create access to the Internet or to store content may find its hardware creating or displaying infringing material as a result of decisions by third-parties (the system’s users) without the business doing any truly volitional actions. Religious Technology Center v. Netcom On-Line Comm. Servs., Inc., 907 F.Supp. 1361 (N.D.Cal.1995), illustrates this point vividly. In Religious Technology, a disgruntled former Church of Scientology member was accused of posting copyrighted works on the Internet. Id. at 1365-66. This member used a bulletin board service (BBS) to gain access to the Internet, and the BBS in turn used the facilities of Net-corn to provide this access. Id. at 1366. When the initial defendant sent his postings to the Internet, the information was automatically stored briefly on the BBS’s computer and then automatically copied on Netcom’s computer. Id. at 1367. Once on Netcom’s computers, the messages were then available to Netcom’s users and eventually to all users that participated in a service called Usenet. Id. at 1367-68. The Ninth Circuit in a previous case, MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir.1993) had upheld a finding of copyright infringement where a repair person who was not authorized to use a computer owner’s licensed operating system software had merely turned on the computer. The relevant copying in MAI Systems was the loading of the operating system into the computer’s memory long enough to check an “error log.” 991 F.2d at 518. Similarly, in Religious Technology, the existence of the messages on the system were “sufficiently ‘fixed’ to constitute recognizable copies under the Copyright Act.” 907 F.Supp. at 1368. Nevertheless, the Religious Technology court found Netcom was not liable for direct copyright infringement. Id. at 1372-73. First the court noted that Net-com had not initiated the copying. Id. at 1368. The court then analogized Netcom’s creation of a system that automatically and uniformly creates temporary copies of all data through it to a copying machine. Id. at 1369. The court rejected the possibility that such actions could violate the exclusive right to reproduce a work absent some further element of volition or causation, relying on the unreasonable liability such a regime would create. Id. Similarly, the Netcom court rejected the argument that the storage of the works on Netcom’s system for up to eleven days violated the plaintiffs’ right to publicly distribute and display their works. Id. at 1371-72. The court found that there were the same causation and volition problems that infected the reproduction claim. Id. at 1372. The actions of the BBS provider were automatic and indiscriminate. Id. Moreover, the court pointed to the fact that Netcom did not maintain an archive of files for its users, thus it could not be said to be supplying a product to users. Id. This contrasted with some of its competitors that created or controlled content available to their subscribers. Id. The failure to establish any violation of the plaintiffs’ reproduction, distribution or display rights by Netcom thus defeated plaintiffs’ direct infringement theory. See id. at 1370,1373. Following the Religious Technology decision, another district court found a BBS operator that knew about copyright infringement on its service and encouraged others to upload infringing products onto its service could not be held liable on a direct infringement theory. See Sega Enterprises, Ltd. v. MARPHIA, 948 F.Supp. 923, 931 (N.D.Cal.1996). This was so because the activity charged had no bearing on whether the BBS operator “directly caused” the copying to occur. Id. Finally, in Playboy Enterprises, Inc. v. Russ Hardenburgh, Inc., 982 F.Supp. 503, 512 (N.D.Ohio 1997), a district court found direct infringement despite its agreement with the rationale of Religious Technology. The Hardenburgh court stressed that a direct infringer must “actually engage” in one of the activities reserved to copyright owners. Id. In Hardenburgh, the court found that the defendant BBS providers engaged in two of the activities exclusively reserved for copyright owners. Id. at 513. First, the court found the defendants had distributed and displayed copies of Playboy photographs. Id. This finding hinged on the defendant’s policy of encouraging subscribers to upload files onto its system, viewing the files in the upload file, and then moving the uploaded files into files generally available to subscribers. Id. This transformed the defendants from passive providers of a space to active participants in the process of copyright infringement. The moving of the files, accomplished by employees constituted the distribution, and the display of those copes after the BBS’s employees placed the files there violated the right of display. Id. The principle distilled from these cases is a requirement that defendants must actively engage in one of the activities recognized in the Copyright Act. Based on the evidence before the Court it appears that Cybernet does not use its hardware to either store the infringing images or move them from one location to another for display. This technical separation between its facilities and those of its webmasters prevents Cybernet from engaging in reproduction or distribution, and makes it doubtful that Cybernet publicly displays the works. Further, there is currently no evidence that Cybernet has prepared works based upon Perfect 10’s copyrighted material. The Court therefore concludes that there is little likelihood that Perfect 10 will succeed on its direct,infringement theory. 2. Contributory Infringement Liability for contributory copyright infringement attaches when “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.” A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1019 (9th Cir.2001)(“Napster II ”). Put differently, liability exists if the defendant engages in personal conduct that encourages or assists the infringement. Id. The standard for the knowledge requirement is objective, and is satisfied where the defendant knows or has reason to know of the infringing activity. Gershwin Publishing Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir.1971). a. Cybernet’s Knowledge Cybernet’s only argument against Perfect 10’s contributory infringement theory is that Cybernet lacks the requisite knowledge to be held liable. Opp’n at 20. Cybernet relies heavily on Perfect 10’s failure to contact Cybernet with its claims before beginning the present litigation. Id. According to Cybernet, although it employs twelve site reviewers, even if they had seen Perfect 10 copyright notices on various sites, they would not necessarily know Perfect 10’s copyrights were infringed because they might be licensed. Id. at 20-21. In contrast, there is evidence that Steven Easton of the Association for the Protection of Internet Copyright contacted Cybernet with approximately 2,000 emails, beginning in 1996 or 1997, notifying Cybernet of alleged copyright infringement on its system. Easton Decl. ¶2. Perfect 10 has also brought forward evidence that Cybernet was notified of generic potential copyright infringement by users in 2001. Zadeh' Decl., Ex. 102. Additionally, Cybernet’s site reviewers review every site before allowing the sites to utilize the Adult" Check system, and attempt to review other sites monthly. Mausner Decl., Ex. C at 102, 114; Zadeh Decl., Ex. 30. Although they might not detect every copyright violation, there is evidence that many sites contain disclaimers to the effect, “we do not hold copyrights for these works.” Farmer Depo. at 121:19-21. Finally, Perfect 10’s Second Amended Complaint, filed on June 15, 2001, contained notice of Perfect 10’s allegations concerning potential infringement on 77 different websites. This evidence of notice compares favorably with the allegations of notice in Fono- visa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir.1996). In Fonovisa, the Fresno County Sheriffs Department seized 38,-000 counterfeit tapes (copyright holders unstated) from a swap meet approximately a year and a half before the plaintiff filed suit. See Fonovisa, Inc. v. Cherry Auction, Inc., 847 F.Supp. 1492, 1494 (E.D.Cal.1994) rev’d 76 F.3d 259 (9th Cir.1996)(“Fonovisa I ”). Additionally, the swap meet had received a letter six months before the suit from a police officer who “observed that several casual vendors of Latin audio music tapes had abandoned their booths upon his arrival.” Id. at 1494. Finally, three months before the suit an investigator for the plaintiff witnessed infringing sales of counterfeit goods. Id. After the First Amended Complaint was served, investigators then revisited the swap meet where they found many vendors selling “counterfeits at tellingly low prices.” Id. at 1495. On appeal from the district court’s dismissal of the claim, the Ninth Circuit stated “There is no question that plaintiff adequately alleged the element of knowledge in this case.” Fonovisa, 76 F.3d at 264. Perfect 10 has raised at least a serious question on the issue of knowledge. The Court finds that there is a strong likelihood of success in proving general knowledge of copyright infringement prior to Perfect 10’s filing of the complaint. There are also serious questions as to Cybernet’s constructive knowledge of infringement of Perfect 10’s copyrights prior to the complaint raised by this general knowledge, Cybernet’s review of sites containing Perfect 10 images and the likelihood of those sites containing copyright disclaimers. Further, there appears to be little question that Cybernet has been provided with actual notice of a large number of alleged infringements since June 2001. The Court thus finds there is a strong likelihood of success that Perfect 10 will satisfy the knowledge requirement for contributory liability. b. Cybernet’s Material Contribution to Infringing Activity The Court also finds that there is a strong likelihood that Perfect 10 will succeed in establishing Cybernet’s material contributions to the infringing activity. Cybernet markets the Adult Check brand through advertising, it pays webmasters commissions directly based upon the number of Adult Check users that register through the site, it provides technical and content advice, it reviews sites, and it attempts to control the quality of the “product” it presents to consumers as a unified brand. Cybernet’s entire business model is premised on harnessing the competitive pressures between individual webmasters into a cooperative system that benefits the webmasters by increasing the overall value to consumers. Cybernet’s role in this system is crucial, and it profits accordingly, only paying out approximately 1/2 of each subscriber’s payments to the participating websites for each of its users, who access the system close to 2 million times daily. In Fonovisa the Ninth Circuit had “little difficulty” in holding the allegations directed at a swap meet, where the vendors were selling counterfeit goods, sufficient to show material contribution. 76 F.3d at 263. As the court observed, “it would be difficult for the infringing activity to take place in the massive quantities alleged without the support services provided by the swap meet,” including the provision of space, utilities, parking, advertising, plumbing and customers. Id. Similarly, Cybernet’s hand in Adult Check,. and in particular its steady payments to infringing sites along with its advertising, materially contribute to the growth and proliferation of any infringement. This conclusion comports with both Napster decisions and with Religious Technology. The Court finds the evidence before it supports the conclusion that Perfect 10 has a strong likelihood of establishing material contribution by Cybernet to activity that infringes Perfect 10’s copyrights. c. Contributory Infringement — Conclusion The Court therefore finds that there is at least a serious question on the merits of Perfect 10’s contributory infringement claim against Cybernet prior to' the filing of the present suit and a strong likelihood of success on its claims stemming from Cybernet’s post-filing conduct. 3. Vicarious Copyright Infringement Courts have extended vicarious liability in the copyright context to defendants that have (1) the right and ability to exercise control over a directly infringing party and its activities and (2) obtained a direct financial benefit from the infringing activities. Fonovisa, 76 F.3d at 262. a. Direct Financial Interest Cybernet argues that it does not have a sufficiently direct financial interest to be held liable for vicarious copyright infringement. Opp’n at 22-23. The Court strongly disagrees. Cybernet markets the Adult Check brand based on both the number of images and their quality. Zadeh Deck, Ex. 4; Lane Deck ¶¶ 54, 57. Perfect 10 has brought forward evidence that it has sunk significant resources into developing high-quality adult images. Taking Perfect 10’s allegations of 10,000 infringing images at face value, as Cyber-net does for purposes of this test, see Opp’n at 22, Cybernet benefits from the draw posed by the existence of these works provided at a cost far below that provided by the copyright owner. See Fonovisa, 76 F.3d at 263-64; Lane Deck ¶ 81; see also Napster II, 239 F.3d at 1023 (“Ample evidence supports the district court’s finding that Napster’s future revenue is directly dependent upon ‘increases in user base.’ More users register with the Napster system as the quality and quantity of available music increases.”) Cybernet benefits directly from these infringing sites to the extent that they have brought in new users because the new customers pay Cybernet directly. In addition, there is the ancillary benefit brought in by the incremental additional value these sites pose to consumers, who gain access to all sites by paying the Adult Check membership fee. Cf. Religious Technology, 907 F.Supp. at 1377 (granting defendant summary judgment where no evidence “that Netcom’s policy directly financially benefits Netcom, such as by attracting new subscribers.”) Moreover, the Court finds that there is a strong likelihood that Perfect 10 will establish a “symbiotic interest” between Cybernet and the infringing websites based on the close interrelationship between Cybernet and its affiliated websites, a relationship that appears to outside consumers as if Adult Check constitutes a single brand. See Adobe Systems, Inc. v. Canus Productions, Inc., 173 F.Supp.2d 1044, 1051 (C.D.Cal.2001)(discussing “symbiotic interest”). It should be noted that all the money associated with these websites flows directly to Cybernet before some of it is returned to the individual site owners as “commissions.” The Court concludes that this evidence creates a strong likelihood Perfect 10 will establish this direct financial interest. Cybernet relies on Adobe Systems, 173 F.Supp.2d at 1052, to argue otherwise. Adobe Systems involves a copyright action against the proprietor of weekly computer fairs where approximately one hundred pirated copies of Adobe Systems software were located at shows that averaged up to 15,000 attendees per weekend. Id. at 1047. On plaintiff’s motion for summary judgment the court discussed Fonovisa and its requirement of direct financial benefit. Id. at 1050-53. The Adobe Systems court read into Fo-novisa ’s discussion of vicarious liability a requirement to show “a direct financial benefit to the defendant from the ‘draw1 of the infringing products.” Id. at 1050. At different points in the opinion this idea was expressed in language such as: • “the sale of the counterfeit products must in fact be the ‘draw1 for customers to the venue.” Id. at 1050 (emphasis added). • “Plaintiffs must show that the vendor’s infringement constitutes a draw to the venue to the extent that the economic interests of the direct infringer and those of the landlord become closely intertwined.” Id. at 1051. • “[Pjlaintiff bears the burden of demonstrating a direct financial benefit to the landlord from ‘customers seeking to purchase infringing recordings’ and profits which ‘flow directly from customers who want to buy the counterfeit recordings.’ ” Id. at 1050. • “Without the requirement that the counterfeit goods provide the main customer draw, Fonovisa would ‘provide essentially for the limitless expansion of vicarious liability into spheres wholly unintended by the court.’ ” Id. at 1051 (emphasis added). • “Fonovisa found a symbiotic relationship existed between the infringing vendors and the landlord because ‘the very success of the landlord’s venture depends on the counterfeiting activity (and thus the landlord has every incentive to allow the activity to continue).’ ” Id. at 1051. The Adobe Systems court then concluded that on the facts of the case, where both the number of infringements and the apparent impact of these infringements was small, there was not a symbiotic relationship and that there were triable issues of fact remaining as to whether the infringing products constituted a draw. Id. at 1052. Similarly in Religious Technology, the court found no evidence of direct financial benefit for Netcom where it received a fixed fee. 907 F.Supp. at 1376-77. The court also found that there was no evidence that infringement by Netcom users enhanced the value of Netcom’s services to subscribers or attracted new subscribers. Id. at 1377. This case is unlike Religious Technology because Cybernet receives more than a fixed fee. The income derived from each website is directly based on the site’s initial popularity. The more consumers appreciate the content of a page, the more money Cybernet receives. Cybernet’s income stream pays no regard to a site’s respect for copyright or lack thereof. Additionally, Cybernet (and Adult Check) depends on content to attract consumers. Cybernet has given no reason to believe that these pages do not attract consumers, thereby creating a financial benefit to Cy-bernet. In comparison to Adobe Systems, however, the present facts pose a closer question. Cybernet attempts to hide behind the sheer volume of images on its sites to argue that even 10,000 infringing images does not establish a sufficiently direct financial interest or relationship. Opp’n at 22. The Court disagrees. In Adobe Systems, the court implied that the small number of infringing articles was insufficient to support a conclusion that these items provided “a significant draw” bringing consumers to the fairs. 173 F.Supp.2d at 1053. In contrast, the Court concludes that there is a strong likelihood Perfect 10 will establish a large number of infringing sites. Cf. Playboy v. Webbworld, 968 F.Supp. 1171, 1177 (finding sufficient financial interest where defendants received a percentage of fixed fee and there were sixty-seven infringing images on site). The Court also concludes that the fortunes of these sites and Cybernet are sufficiently tied to create the requisite direct financial benefit. See Napster II, 239 F.3d at 1023. The Court therefore concludes that Perfect 10 has shown a strong likelihood of success as to the direct financial interest element of vicarious liability. b. Right or Ability to Control Cybernet argues that it lacks the right and ability to control the websites because it cannot “affirmatively work as some sort of Internet ‘hall monitor,’ policing an unruly class of webmasters and responding instantaneously wh