Advanced Copyright Issues on the Internet - Fenwick & West LLP

easonably implemented. Corbis had not shown any more effective and reasonable method thatAmazon could have used to prevent vendors from re-accessing zShops. 1927With respect to the second question – tolerance of flagrant abusers – the court noted thatSection 512(i) requires only that repeated copyright infringers be terminated in “appropriatecircumstances” and that a service provider need not conduct active investigation of possibleinfringement or make a decision regarding difficult infringement issues. 1928 The court seems tohave set a rather high threshold for what might constitute “appropriate circumstances”:“Because it does not have an affirmative duty to police its users, failure to properly implementan infringement policy requires a showing of instances where a service provider fails toterminate a user even though it has sufficient evidence to create actual knowledge of that user’sblatant, repeated infringement of a willful and commercial nature.” 1929Corbis alleged that Amazon tolerated repeated infringers because it had received threeemails (although not from Corbis) in which the sender claimed that zShop listings posted by onevendor were infringing, and had received seven emails (again not from Corbis) in which thesender claimed that zShop listings of another vendor were infringing, and had not terminatedeither vendor’s access to zShops until after Corbis’ suit was filed. The court found that thisevidence did not amount to a showing that Amazon had knowledge of blatant, repeatinfringement that would have required Amazon to terminate access to the vendors’ zShopssites. 1930 In a very significant ruling, the court held the following: “Although efforts to pindown exactly what amounts to knowledge of blatant copyright infringement may be difficult, itrequires, at a minimum, that a service provider who receives notice of a copyright violation beable to tell merely from looking at the user’s activities, statements, or conduct that copyrightinfringement is occurring.” 1931 Citing various previously decided cases, the court noted thatexamples of such blatant infringement may include statements from the vendor that a product isbootlegged or pirated, chat rooms hosted by the service provider in which users discuss how theservice can be used to circumvent copyright laws, or the offering of hundreds of audio files in asingle day for peer to peer copying. Corbis had presented no such examples of blatant infringingactivity on the vendor defendants’ zShops sites. 1932In another significant ruling, the court held that notices from copyright owners underSection 512(c)(3) do not, of themselves, necessarily establish evidence of blatant or repeatinfringement. “A copyright owner may have a good faith belief that her work is being infringed,but may still be wrong. The notification requirement does not take into account that a vendormay have ‘a legitimate fair use defense, or can otherwise invoke any of the myriad other factorsthat go into evaluating a copyright infringement claim.’ Although the notices have brought the1927 Id. at 1103-04.1928 Id. at 1104.1929 Id.1930 Id. at 1104.1931 Id. at 1104-05.1932 Id. at 1005.- 416 -