Advanced Copyright Issues on the Internet - Fenwick & West LLP

Section 512(c)(3)(B)(ii). 1875 In addition, Cybernet’s notice requirements did not allow forsubmission of a representative list of copyrighted works being infringed – they required thespecific web page at which a given infringing work was located, “rather than the site.” 1876Cybernet’s counter-notification procedures were also ruled defective. The court held thatthe counter-notification procedures of the DMCA implicate the requirement of a reasonablyimplemented Section 512(i) policy “because there is an implication that a party who cannot signthe required statement is a knowing infringer. Thus, the counter-notification procedures appearto serve the generally self-policing policy that section 512 reflects.” 1877 Cybernet’s counternotificationprocedures provided that, if an alleged infringer stated under penalty of perjury thatit had removed the named infringing material, the alleged infringer’s access to the service wouldbe restored. The court held that this policy “allows Cybernet to reinstate an infringer without theCongressionally-required statement and provides cover for Cybernet to water down itstermination policy by treating these minimalist take-down statements as neither an admission nora denial of the copyright infringement allegations, regardless of how blatant the infringementmight be.” 1878The court also concluded that the Section 512(c) safe harbor was not available for thefurther reason that Cybernet received a financial benefit “directly attributable” to infringingactivity with respect to which it had the right and ability to control. The court noted that thedirect financial benefit requirement was satisfied for the same reasons noted in its analysis ofCybernet’s vicarious liability (see Section II.C.3(d) above), 1879 although it agreed with theHendrickson v. eBay and CoStar courts that the mere ability to exclude users from its system isnot of itself sufficient right and ability to control infringing activity to deny the safe harbors to aservice provider. 1880 The court expressed no opinion on the question whether the “directlyattributable” language in the safe harbor is narrower or equivalent to the general vicariousinfringement requirement of a direct financial benefit, but ruled that in any event the direct flowof income to Cybernet based on the number of new subscribers signed up by its member sites atwhich infringing activity was taking place was sufficient to establish a financial benefit “directlyattributable” to infringing activity. 1881Finally, the court held that there was no evidence presented that Cybernet ever“expeditiously” removed infringing material from its system, disabled links, or altered its searchengine under its DMCA policy. Accordingly, the court concluded that there was little likelihood1875 Id. at 1179-80.1876 Id. at 1180.1877 Id.1878 Id.1879 Id. at 1181.1880 Id.1881 Id.- 407 -