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Copyright Law Summary
Perfect 10, Inc. v. CCBill LLC
04-57143, 2007 WL 925727, 9th Cir., 03/29/2007
Holding
Internet service provider that hosts other sites did not unreasonably implement policies to identify and terminate repeat copyright infringers regarding notice of alleged infringement or potential "red flags" of infringement, but district court must reconsider how service providers implemented policies with regard to non-party notice.
Detailed Summary
Defendants are internet service providers that host other websites. As such, they are required under the DMCA to record hosted webmasters associated with allegedly infringing websites and to implement a reasonable policy to identify and terminate repeat offenders. Plaintiff alleged that defendants unreasonably implemented their policies by: (a) disregarding notice of infringement from the plaintiff; (b) disregarding notice from non-parties; and (c) ignoring alleged “red flags” such as using words “illegal” and “stolen” in website names and hosting password-hacking sites. The court held first that the plaintiff’s notice was deficient because it did not contain the requisite statement that under penalty of perjury it was an authorized representative of the copyright holder and has a good faith belief that infringing activity is taking place. In addition, the court held that notice must be contained in a single document, not “cobbled together” in various documents requiring the defendant to search for the actual notice. As to notice from non-parties, however, the court held the district court improperly determined those notices were irrelevant to the question of reasonable implementation. Finally, the court held that the alleged “red flags” were not actually red flags. Website names with words like “illegal” and “stolen” are not per se red flags because they are not actually admissions of illegal activity, but rather may just be meant to lure in viewers with the promise of titillating material. Nor are password-hacking websites per se red flags, though they might contribute to infringing activity even if they don’t directly infringe. To be a “red flag,” it must be apparent that the site instructed or enabled others to infringe. The only way for defendants to determine that is to use the passwords; but service providers have no investigative duty to do so.
Law Commentary
Read the related Law commentary: Ninth Circuit Clarifes Rule on Notice under the Safe Harbor Provision of Section 512 of the DMCA, by Thomas F. Zuber, Esq.
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