Advanced Copyright Issues on the Internet - Fenwick & West LLP

e. The Aimster/Madster Lawsuits. The facts of theAimster/Madster lawsuits are set forth in Section III.C.2(c)(3) above. In that case, Aimsterasserted the Section 512(c) safe harbor. As discussed in Section III.C.5(b)(1)(i).c above, thedistrict court concluded that Aimster was not entitled to any of the DMCA safe harbors becauseof its failure to satisfy the Section 512(i) predicate with respect to implementation of a policy toterminate repeat infringers on its system. In addition, the court held that Aimster had notsatisfied the specific conditions of Section 512(c) because the plaintiffs were not assertingliability based on the caching of infringing material anywhere within Aimster’s system, and theinfringing materials were not transmitted “through” the Aimster system. 1885 As discussed inSection III.C.5(b)(1)(i).c, on appeal the Seventh Circuit affirmed the ruling that the safe harborswere not available to Aimster because of failure to comply with Section 512(i). 1886f. Hendrickson v. Amazon.com. The case ofHendrickson v. Amazon.com, Inc. 1887 adjudicated the interesting issue of the extent of an ISP’sobligation to police its system for infringing material once it receives notice from a copyrightholder that all copies of a particular work are unauthorized. This case involved facts similar tothe Hendrickson v. eBay case discussed above. On Jan. 28, 2002, Hendrickson sent a letter toAmazon.com notifying it that all copies of the movie Manson on DVD infringed his copyright.On Oct. 21, 2002, Hendrickson noticed that a Manson DVD was posted for sale on Amazon’swebsite. Hendrickson purchased a copy of the DVD, then filed an action against both Amazonand the poster of the DVD, asserting claims of direct infringement against Amazon and theposter, and a claim of vicarious liability against Amazon. Amazon moved for summaryjudgment on the ground that it was not liable for direct infringement, since the movie had notbeen sold by Amazon, and that it was entitled to the safe harbor of Section 512(c) for the claimof vicarious liability. 1888The court first ruled that Amazon was not liable for direct infringement, even though ithad offered the website pages that the seller and buyer used to complete the purchase, becauseAmazon was not the actual seller of the item. 1889 With respect to the DMCA safe harbor, thecourt first held, consistent with the Aimster/Madster case and the Ninth Circuit’s decision inNapster I, that the DMCA safe harbors can shield against vicarious liability. 1890 The court thennoted that, although the DMCA places the burden on the copyright owner in the first instance to1885 In re Aimster <strong>Copyright</strong> Litigation, 252 F. Supp. 2d 634, 660-61 (N.D. Ill. 2002) & n.21.1886 In re Aimster <strong>Copyright</strong> Litigation, 334 F.3d 643 (7th Cir. 2003), cert. denied, 124 S. Ct. 1069 (2004).1887 69 U.S.P.Q.2d 1471 (C.D. Cal. 2003).1888 Id. at 1471-72.1889 Id. at 1472.1890 Id.- 409 -