This section contains the nature of the case and procedural background.

P owns copyrights and trademarks to Latin/Hispanic music recordings. Cherry Auction (D) operates a swap meet. Vendors pay a daily rental fee to the swap meet operators in exchange for booth space. D supplies parking, conducts advertising, and retains the right to exclude any vendor for any reason, at any time, and thus can exclude vendors for patent and trademark infringement. In addition, D receives an entrance fee from each customer who attends the swap meet. D and its operators were aware that vendors in their swap meet were selling counterfeit recordings in violation of P's trademarks and copyrights. In 1991, the Fresno County Sheriff's Department raided the swap meet and seized more than 38,000 counterfeit recordings. The following year, after finding that vendors were still selling counterfeit recordings, the Sheriff sent a letter notifying D of the ongoing sales of infringing materials and reminding D that they had agreed to provide the Sheriff with identifying information from each vendor. P sent an investigator to the site and observed sales of counterfeit recordings. P filed a complaint. The district court granted Ds' motion to dismiss. P does not challenge the district court's dismissal of its claim for direct copyright infringement but does appeal the dismissal of its claims for contributory copyright infringement, vicarious copyright infringement, and contributory trademark infringement.

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