Advanced Copyright Issues on the Internet - Fenwick & West LLP

infringement, it would need to be apparent that the website instructed or enabled users to infringeanother’s copyright. 1762 “We find that the burden of determining whether passwords on awebsite enabled infringement is not on the service provider. The website could be a hoax, or outof date. … There is simply no way for a service provider to conclude that the passwords enabledinfringement without trying the passwords, and verifying that they enabled illegal access tocopyrighted material. We impose no such investigative duties on services providers. Passwordhacking websites are thus not per se ‘red flags’ of infringement.” 1763Perfect 10 argued that CCBill and CWIE had also failed the predicate condition ofSection 512(i)(1)(B) of not interfering with standard technical measure used to identify orprotect copyrighted works, by blocking Perfect 10’s access to CCBill affiliated websites in orderto prevent Perfect 10 from discovering whether those websites infringed Perfect 10’s copyrights.The Ninth Circuit found two disputed facts at issue for purposes of summary judgment. First,the court was unable to determine on the record whether accessing websites is a standardtechnical measure that was developed pursuant to a broad consensus of copyright owners andservice providers in an open, fair, voluntary, multi-industry standards process, as required bySection 512(i)(2)(A). Second, even if it were a standard technical measure, CCBill claimed itblocked Perfect 10’s credit card only because Perfect 10 had previously reversed charges forsubscriptions. Perfect 10 insisted it did so in order to prevent Perfect 10 from identifyinginfringing content. If CCBill were correct, Perfect 10’s method of identifying infringement –forcing CCBill to pay the fines and fees associated with chargebacks – might well impose asubstantial cost on CCBill. If not, CCBill might well have interfered with Perfect 10’s efforts topolice the websites in question for possible infringements. Accordingly, the court remanded tothe district court for determinations on whether access to a website is a standard technicalmeasure, and if so, whether CCBill’s refusal to process Perfect 10’s transactions interfered withthat measure for identifying infringement. 1764Finally, the court turned to issues of whether CCBill and CWIE were entitled to theSection 512(a) safe harbor. Agreeing with the district court, the Ninth Circuit rejected Perfect10’s argument that CCBill was not eligible for immunity under Section 512(a) because it did notitself transmit the infringing material. The court noted that Section 512(a) provides a broad grantof immunity to service providers whose connection with the infringing material is transient. Inthe course of an Internet transmission of information through multiple computers, all interveningcomputers provide transient connections among users. The court read Section 512(a) to grantimmunity to all service providers for transmitting all online communications, not just those thatdirectly infringe. 1765The court noted that CCBill transmitted credit card information and proof of payment,both of which were digital online communications. However, there was little information in therecord as to how CCBill sent the payment it received to its account holders, and it was unclear1762 Id.1763 Id. at 763-64.1764 Id. at 764.1765 Id. at 765.- 383 -