Advanced Copyright Issues on the Internet - Fenwick & West LLP

that a defendant can look for enforcement of the principles Netcom embodied. “When Congresscodifies a common-law principle, the common law remains not only good law, but a valuabletouchstone for interpreting the statute, unless Congress explicitly states that it intends to supplantthe common law.” 1868 The court found it clear that Congress intended the safe harbors to be afloor, not a ceiling, of protection, and the common law principles of Netcom are therefore stillgood law. 1869Important Principles. The decisions by the district court and by the Fourth Circuit in theCoStar case contain a number of important principles. First, some gateway screening of postedmaterial by an OSP will not necessarily establish sufficient knowledge or control over allegedlyinfringing works to destroy the potential availability of the Section 512(c) safe harbor. Second,consistent with the Ninth Circuit’s ruling in the Napster I case discussed in subsection (iv)below, the boundaries of the contributory liability doctrine and the Section 512(c) safe harbor arenot contiguous – Section 512(c) can provide a safe harbor to activity that would otherwise beinfringing under the contributory liability doctrine. The CoStar case, however, reached anopposite conclusion from the Ninth Circuit in the Napster I case, as well as the Aimster/Madsterand the Hendrickson v. Amazon.com cases discussed in Section III.C.5(b)(1)(i).c and SectionIII.C.5(b)(1)(iii).g respectively, on the issue of whether the Section 512(c) safe harbor can shieldagainst vicarious liability (the CoStar case concluding no, the Napster I, Aimster/Madster, andHendrickson v. Amazon.com cases concluding potentially yes).Third, consistent with the Hendrickson v. eBay case, the OSP’s mere ability to terminateinfringing users or activity will not of itself be sufficient to establish “control” of the infringingactivity for purposes of adjudicating the availability of the Section 512(c) defense. Fourth, theamount of policing for future infringements an OSP may be required to do may depend upon thelevel of knowledge it possesses concerning the scope of infringing activity on its system.Although not stated as such in the Napster cases, those cases bear evidence of the principle, forthe Ninth Circuit in that case imposed a heavy duty of policing in a case in which it seemed tohave concluded that Napster had a substantial level of knowledge of infringing activity using itssystem.d. Perfect 10 v. Cybernet Ventures. The Section 512(c)safe harbor was further adjudicated in the case of Perfect 10, Inc. v. Cybernet Ventures, Inc., 1870the facts of which are set forth in Section III.C.2(f) above. Assuming that Cybernet qualified asa “provider of online services” within the definition of Section 512(k), 1871 the court turned towhether Cybernet had satisfied the predicate requirements of Section 512(i) that it adopt andreasonably implement a policy providing for termination in appropriate circumstances of repeat1868 Id. at 553 (emphasis in original).1869 Id. at 555.1870 213 F. Supp. 2d 1146 (C.D. Cal. 2002).1871 The court noted that, although the definition is quite broad, its applicability to Cybernet was made a bitcomplicated by the fact that Cybernet insisted that it did not host any infringing images and that no image filespassed through any of its computers, but rather that it was purely a provider of age verification services. Id. at1175.- 405 -