Perfect 10, Inc. v. CCBill LLC

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.

Also See:

FCC Adopts New Rules Permitting TV Channel Sharing by Broadcasters; Enacts First Step Towards Freeing UP Spectrum under Incentive Auction

FCC Modernizes Broadcast Television Public Inspection Files to Give the Public Online Access to Information Previously Available Only at TV Stations

Copyright Office Conducts Proceedings on Exemption to Prohibition on Circumvention of Copyright Protection Systems

Legislation to Deregulate Television Market Introduced in House and Senate

Copyright Office Proposes New Fee Schedule