Advanced Copyright Issues on the Internet - Fenwick & West LLP

copyright infringers. Disagreeing with the ruling of the Ellison case discussed in SectionIII.C.5(b)(1)(i) above, which held that Section 512(i) does not require a service provider toactually terminate repeat infringers or even to investigate infringement, but rather merely toestablish a threat of termination for repeat infringement, the court in Perfect 10 v. CybernetVentures held that Section 512(i) does in fact imply some substantive responsibilities for serviceproviders. Although it does not require active investigation of possible infringement, or takingaction for isolated infringing acts by single users, or addressing “difficult infringement issues,”or even actively monitoring for copyright infringement, the court concluded that whenconfronted with “appropriate circumstances,” Section 512(i) requires a service provider toreasonably implement termination. 1872These circumstances would appear to cover, at a minimum, instances where aservice provider is given sufficient evidence to create actual knowledge of blatant,repeat infringement by particular users, particularly infringement of a willful andcommercial nature. … Under this reading, section 512(i) is focused on infringingusers, whereas 512(c) is focused primarily on the infringing material itself. 1873Analyzing the interplay between the requirements of Sections 512(i) and 512(c), thecourt viewed “512(i) as creating room for enforcement policies less stringent or formal than the‘notice and take-down’ provisions of section 512(c), but still subject to 512(i)’s ‘reasonablyimplemented’ requirement.” The court ruled that Cybernet had not satisfied the requirements ofSection 512(i). Cybernet had not submitted any documentary evidence that it had ever takenaction against individual webmasters who repeatedly put up infringing sites so that suchwebmasters could not simply move infringing materials from site to site. Instead, Cybernet hadonly removed from its search engine and links page any site about which it had received a noticeof infringement, without ever refusing to provide further services to the operators of those sites.Accordingly, the court concluded that Cybernet had not reasonably implemented a policy toterminate repeat infringers from its service and had therefore not satisfied the predicaterequirements of Section 512(i) for the safe harbors. 1874The court further ruled that, even if Cybernet could be found to have satisfied thepredicate requirements of Section 512(i), it still would not be eligible for the safe harbor ofSection 512(c) for two reasons: defective implementation of notice procedures required bySection 512(c) and receipt of a direct financial benefit from infringing activity that it had a rightand ability to control.With respect to the defective implementation of notice procedures, the court noted thatCybernet’s take down policy required a complaint to comply strictly with all its stated noticerequirements before Cybernet would take action, and there was no indication that Cybernet triedto work with parties whose notice was deficient but satisfied the minimal requirements of1872 Id. at 1176.1873 Id. at 1177.1874 Id. at 1178-79.- 406 -