Advanced Copyright Issues on the Internet - Fenwick & West LLP

The Ninth Circuit found that there was no evidence that AOL customers eithersubscribed because of the available infringing material or canceled subscriptions because it wasno longer available. Accordingly, no jury could reasonably conclude that AOL received a directfinancial benefit from providing access to the infringing material, and the claim for vicariousliability failed. 1707The district court also ruled on an assertion by AOL of two of the DMCA safe harbors –the Section 512(a) and the Section 512(c) safe harbors. The district court noted that as apredicate for any of the safe harbors, AOL had to satisfy the requirement of Section 512(i) that ithave adopted and reasonably implemented, and informed its subscribers, of a policy for thetermination in appropriate circumstances of subscribers who are repeat infringers. 1708 Citing thelegislative history, the court ruled that Section 512(i) does not require OSPs to take affirmativesteps to investigate potential infringement and set up notification procedures in an attempt toidentify the responsible individuals committing infringement through the system. Rather, it wassufficient to satisfy Section 512(i) that AOL’s terms of service, to which every AOL memberhad to agree, included a notice that AOL members could not make unauthorized copies ofcontent protected by intellectual property rights and their accounts could be terminated formaking such unauthorized copies. 1709The plaintiff challenged whether AOL had reasonably implemented its termination policyby noting that no subscriber had ever been terminated from AOL as a repeat infringer and AOLhad not at the time of the infringement defined how many times a user had to be guilty ofinfringement before being classified as a repeat infringer. The court rejected this challenge,noting that Section 512(i) does not require AOL to actually terminate repeat infringers or even toinvestigate infringement in order to determine if AOL users are behind it. “That is the provinceof subsection (c), which provides detailed requirements related to notification of infringementand the ISPS’ responsibility to investigate and, in some instances, delete or block access toinfringing material on their systems. Subsection (i) only requires AOL to put its users on noticethat they face a realistic threat of having their Internet access terminated if they repeatedlyviolate intellectual property rights.” 1710 The court therefore held that AOL had satisfied thepredicate requirements of Section 512(i). 17111707 Id.1708 The court noted that such a policy must have been adopted, reasonably implemented and noticed to subscribersat the time the allegedly infringing activity occurred. “Doing so after the infringing activity has alreadyoccurred is insufficient if the ISP seeks a limitation of liability in connection with that infringing activity.”Ellison v. Robertson, 189 F. Supp. 2d 1059, 1064 (C.D. Cal. 2002).1709 Id. at 1064-65.1710 Id. at 1066. An important implication of this ruling appears to be that an OSP can qualify for the Section512(a) safe harbor regardless of whether it promptly deletes infringing material or terminates repeat infringers,so long as it has a policy to do so and otherwise complies with the requirements of the Section 512(a) safeharbor. The court further stated: “[T]he ‘realistic threat of losing [Internet] access’ that Congress wishes ISPsto impress upon would-be infringers remains just that – a mere threat – unless the ISP decides to implementprocedures aimed at identifying, investigating, and remedying infringement in hopes of meeting therequirements of subsection (c)’s safe harbor. Such an arrangement makes a certain amount of sense. Ifsubsection (i) obligated ISPs to affirmatively seek out information regarding infringement and then investigate,- 373 -