Advanced Copyright Issues on the Internet - Fenwick & West LLP

that Cybernet would qualify for the safe harbors. 1882 (An additional aspect of the court’s rulingwith respect to the Section 512(d) safe harbor is set forth in Section III.C.5(b)(1)(iv) below.)Important Principles. The court’s interpretation of the obligations imposed on a serviceprovider by Section 512(i) are interesting. Specifically, Section 512(i) is directed towardelimination of repeatedly infringing users, whereas Section 512(c) is directed to elimination ofinfringing materials. Thus, under “appropriate circumstances,” a service provider must deny allfurther service to a user who is repeatedly using the service to infringe, even if the serviceprovider has in every instance removed the particular infringing material that has been identified.In the Perfect 10 v. Cybernet Ventures case, webmasters who had their sites taken down uponnotice of infringing material would often simply set up a new site and continue offeringinfringing materials. The Perfect 10 v. Cybernet Ventures court ruled that in suchcircumstances, the defendant should have ceased allowing those webmasters to be a part of itsservice entirely, regardless of the site from which they were operating.What constitutes an “appropriate circumstance” for denial of further services to a repeatinfringer is unclear from the case. The court speaks of “blatant, repeat infringement byparticular users, particularly infringement of a willful and commercial nature.” 1883 This suggestsa fairly high standard for an “appropriate circumstance.” However, the court also stated thatthese were circumstances in which a service provider should “at a minimum” terminate servicesto an infringer, so one cannot assume that blatant or willful infringements of a commercial natureare the only circumstances under which it would be “appropriate” to terminate a user.The court’s rulings with respect to the notice requirements of Section 512(c) are alsointeresting. First, under those rulings, a service provider’s notification procedures must allowfor notification of a representative list of copyright works being infringed, rather than alwaysrequiring an exact itemization of the allegedly infringed works. It is unclear from the opinionwhether the representative list possibility must be an explicitly stated part of the serviceprovider’s formal notification procedures, or whether it would be sufficient for the serviceprovider to in fact accept such representative list and act on it. Second, the court interpreted thecounter-notification procedures of the safe harbors in effect to require a statement by the allegedinfringer that the allegedly infringing materials were in fact not infringing – i.e., that they wereremoved “as a result of mistake or misidentification of the material.” 1884 It is not sufficient forthe alleged infringer to inform the service provider that allegedly infringing materials have beenremoved. If the alleged infringer does not state that the materials were removed by mistake ormisidentification, or at least somehow otherwise indicate that the materials were not infringing,the Perfect 10 v. Cybernet Ventures opinion suggests that the service provider is to treat the useras a knowing infringer with respect to that material and count a “strike” against the user forpurposes of measuring whether the user is a “repeat infringer.”1882 Id. at 1182.1883 Id. at 1177.1884 17 U.S.C. § 512(g)(3)(C).- 408 -