Advanced Copyright Issues on the Internet - Fenwick & West LLP

monitor the Internet for potentially infringing sales, 1891 “because the DMCA is relatively new,the question as to how long an adequate notice should remain viable is still unanswered.” 1892Turning to an analysis of this question, the court noted that it was not the intention ofCongress that a copyright owner could write one blanket notice to all service providers alertingthem of infringing material, thereby relieving himself of any further responsibility and placingthe onus forever on the service provider. However, the court also noted that it would be againstthe spirit of the DMCA if the entire responsibility were to lie with the copyright owner to foreverpolice websites in search of possible infringers. 1893To resolve a balance between these competing concerns, the court looked to the languageof the safe harbor, noting that to qualify for the safe harbor, Section 512(c) requires that theservice provider not have actual knowledge that material on its system “is infringing” or thatinfringing activity “is apparent.” 1894 The court concluded that, by use of the present tense,Congress intended for the notice to make the service provider aware of the infringing activitythat is occurring at the time it receives the notice. 1895 “If the infringing material is on the websiteat the time the ISP receives the notice, then the information, that all Manson DVD’s areinfringing, can be adequate to find the infringing material expeditiously. However, if at the timethe notice is received, the infringing material is not posted, the notice does not enable the serviceprovider to locate infringing material that is not there, let alone do it expeditiously.” 1896Drawing on these principles, the court ruled that the DMCA places a limit on the viabilityof an otherwise adequate notice, and with respect to the instant case, “Hendrickson’s January,2002, letter, claiming all Manson DVDs violate his copyright, although adequate for the listingsthen on Amazon, cannot be deemed adequate notice for subsequent listings and sales, especially,as here, when the infringing item was posted for sale nine months after the date of thenotice.” 1897 Accordingly, Amazon’s lack of knowledge of the infringing activity satisfied thefirst prong of the safe harbor under Section 512(c)(1)(A). 1898 Amazon satisfied the second prongof the safe harbor under Section 512(c)(1)(B) because, although it received a financial benefitfrom its third party sellers, the court held that there was no evidence to suggest that Amazon had“the ability to know that an infringing sale by a third party seller would occur,” and hence it1891 Id. at 1473. In an earlier opinion, the court had ruled that Hendrickson’s Jan. 2002 letter substantially compliedwith the DMCA notice requirements. Hendrickson v. Amazon.com, Inc., CV 02-07394 TJH (C.D. Cal. 2003).1892 69 U.S.P.Q.2d at 1473.1893 Id.1894 Id.1895 Id.1896 Id. at 1473-74 (emphasis in original).1897 Id. at 1474.1898 Id.- 410 -