Advanced Copyright Issues on the Internet - Fenwick & West LLP

epeat infringer’s access, suggested Congress’ intent to leave the policy requirements and theobligations of service providers loosely defined. 1922 “Given the complexities inherent inidentifying and defining online copyright infringement, § 512(i) does not require a serviceprovider to decide, ex ante, the specific types of conduct that will merit restricting access to itsservices. As Congress made clear, the DMCA was drafted with the understanding that serviceproviders need not ‘make difficult judgments as to whether conduct is or is not infringing.’” 1923The court found that the Participation Agreement adequately prohibited the listing,linking, or posting of any material that violates copyright laws and made clear that those whoviolated Amazon’s policies could face a variety of penalties. In addition, the court pointed totestimony that those accused of copyright infringement were informed that repeated violationscould result in “permanent suspension” from Amazon sites. Accordingly, the court ruled thatAmazon had an adequate user policy. 1924– Whether Amazon Had Adequately Communicated Its Termination Policy to Its Users.Corbis argued that Amazon had not adequately communicated its termination policy to its usersbecause it did not inform them of the internal criteria it used to determine whether to terminate auser’s access to the site. The court held, however, that Section 512(i) is not so exacting, and thatAmazon needed only inform users that, in appropriate circumstances, it may terminate the user’saccounts for repeated copyright infringement. The statute does not suggest what criteria shouldbe considered by a service provider, much less require the service provider to reveal its decisionmaking criteria to the user. Amazon was required only to put users on notice that they facedexclusion from the service if they repeatedly violate copyright law, and Amazon had done so. 1925– Whether Amazon Had Reasonably Implemented Its Infringement Policy. To judge theadequacy of implementation of an infringement policy, the court noted that one must look at twoquestions – whether a service provider has adopted a procedure for receiving complaints andconveying those complaints to users, and whether the service provider nonetheless still toleratesflagrant or blatant copyright infringement by its users. 1926Turning to the first question, the court found that Amazon had a sufficient procedure forimplementing its infringement policy. Amazon had a practice to promptly cancel a listing onceit received adequate notice that the listing violated another’s copyrights, to inform the vendorthat its listing may have violated intellectual property rights, to give the vendor the contactinformation of the complaining party, and to warn the vendor that repeated violations couldresult in permanent suspension from the Amazon site. The fact that certain vendors had beenable to reappear on the zShops platform under pseudonyms did not amount to a failure ofimplementation. The court ruled that an infringement policy need not be perfect; it need only be1922 Id. at 1100-01.1923 Id. at 1101.1924 Id.1925 Id. at 1101-02.1926 Id. at 1102.- 415 -