Advanced Copyright Issues on the Internet - Fenwick & West LLP

documentary film “Manson” in DVD format. The plaintiff sent a cease and desist letter to eBay,which stated generally that pirated copies of “Manson” were being offered for sale on eBay, butdid not explain which copies of “Manson” were infringing, nor did it identify the plaintiff’scopyright interest. eBay responded by requesting that the plaintiff comply with the noticerequirements of Section 512(c), and suggesting that the plaintiff submit a copy of eBay’s “Noticeof Infringement” form, which would comply with the notice requirements of the DMCA andwould specify which particular item numbers (each listing on eBay’s site had its own itemnumber) were infringing so eBay could remove them. The plaintiff refused to submit the Noticeof Infringement form or otherwise specify which particular items on eBay were allegedlyinfringing, and instead filed a copyright infringement lawsuit. 1804eBay asserted the safe harbor of Section 512(c) as a defense. The court began its analysisby noting that there was no dispute over whether eBay qualified as a “service provider” withinthe meaning of Section 512(k)(1)(B). 1805 The court noted that Section 512(c) was theappropriate safe harbor potentially applicable to eBay because that safe harbor applies toinfringing “activity using the material on” an OSP’s system. 1806The court then turned to an analysis of the issue of proper notice of infringement. UnderSection 512(c)(1)(C), a service provider’s duty to act to remove material that is the subject ofinfringing activity is “triggered only upon receipt of proper notice” substantially compliant withthe required elements of notification set forth in Section 512(c)(3). 1807 As a preliminary matter,the court rejected the plaintiff’s argument that he need not submit written notification incompliance with the notice requirements of Section 512(c)(3) “as long as other facts show theservice provider received actual or constructive knowledge of infringing activity.” 1808 The courtreplied that, under Section 512(c)(3)(B)(i), if the copyright holder’s attempted notification failsto comply substantially with the elements of Section 512(c)(3), then the notification cannot beconsidered when evaluating whether the service provider had actual or constructive knowledgeof the infringing activity. 1809Because the plaintiff admitted that he had not strictly complied with the noticerequirements of Section 512(c)(3), the court turned to an analysis of whether his imperfectattempt to give notice constituted “substantial” compliance, and ruled that it did not because hisnotice did not include several key elements for proper notification:– There was no written statement attesting under penalty of perjury that the informationin the notification was accurate and that the plaintiff was authorized to act on behalf of thecopyright owner, or that the plaintiff had a good faith belief that use of the material in themanner complained of was not authorized. The court held that the plaintiff’s complete failure to1804 Id. at 1084-85.1805 Id. at 1088.1806 Id. (quoting 17 U.S.C. § 512(c)(1)(A)(i)).1807 165 F. Supp. 2d at 1089.1808 Id.1809 Id.- 394 -