Advanced Copyright Issues on the Internet - Fenwick & West LLP

structure intended to protect potential violators only from subjectively improper actions bycopyright owners. 1905The Ninth Circuit found that the plaintiff had failed to raise a genuine issue of materialfact under the subjective standard regarding the MPAA’s good faith. The statements on theplaintiff’s web site strongly suggested that movies were available for downloading, and the courtnoted that the plaintiff had admitted that his own customers often believed that movies wereavailable for downloading. Accordingly, the Ninth Circuit affirmed the district court’s ruling onsummary judgment that there was no issue of material fact as to the MPAA’s “good faith belief”that the plaintiff’s web site was infringing its copyrights. 1906 The Ninth Circuit also affirmed thedistrict court’s holding that the MPAA’s good faith compliance with the notice and takedownprocedures of the DMCA constituted sufficient “justification” under Hawaiian law to avoid theplaintiff’s claim for tortuous interference with contractual relations. 1907h. Perfect 10 v. CCBill. The facts of this case are setforth in Section III.C.5(b)(1)(i)d. above. In that case, the defendant CWIE, an OSP hostingvarious sites that allegedly contained infringing copies of Perfect10’s photos, moved forsummary judgment under the Section 512(c) safe harbor. Perfect 10 argued that CWIE was notentitled to the safe harbor because it had actual knowledge of Perfect 10’s infringements on itsclients’ web sites, it was aware of facts or circumstances from which infringing activity wasapparent, it failed to expeditiously remove or disable access to infringing material of which ithad knowledge, and it received a financial benefit directly attributable to the infringing activityand had the right and ability to control such activity. 1908With respect to the issue of knowledge, the district court found Perfect 10’s notificationsto CWIE of infringement to be deficient under Section 512(c) because they identified only theweb sites containing allegedly infringing material, but did not identify the URLs of theinfringing images or which of Perfect 10’s copyrights were being infringed. 1909 With respect towhether CWIE had constructive notice of infringement, the court noted that the kind ofconstructive notice Congress contemplated under Section 512(c) was that of “red flag” web sitesfrom which infringements would be apparent based on a cursory review of the web site. Underthis test, although some of CWIE’s affiliate web sites advertised images of celebrities, they didnot contain obvious infringements because the web sites did not advertise themselves as pirateweb sites. Accordingly, the court concluded that Perfect 10 had not raised a genuine issue ofmaterial fact that CWIE had actual or constructive knowledge of infringements on its clients’web sites. 19101905 Id. at 1004-05.1906 Id. at 1005-06.1907 Id. at 1006.1908 Perfect 10, Inc. v. CCBill, 340 F. Supp. 2d 1077, 1103 (C.D. Cal. 2004).1909 Id. at 1100-01.1910 Id. at 1103-04.- 412 -