Advanced Copyright Issues on the Internet - Fenwick & West LLP

Because Corbis had chosen not to send notices of infringement to Amazon before filingits lawsuit, Amazon had no actual knowledge of the alleged infringements of Corbis’copyrighted images, and the court turned its analysis to whether Corbis was aware of facts orcircumstances from which infringing activity was apparent. Corbis submitted evidence ofnotices provided by other copyright holders addressing non-Corbis photos and evidencesuggesting that Amazon was aware that Corbis licensed celebrity photos, from which Corbisargued that Amazon should have known that zShops vendors sold infringing Corbis images.The court rejected this evidence as insufficient to establish a material issue of factregarding Amazon’s actual or apparent knowledge of infringing material on the zShops platform.A mere general awareness that a particular type of item may be easily infringed is insufficient toestablish actual knowledge. With respect to apparent knowledge, the court cited the Nimmercopyright treatise for the proposition that the standard is not “what a reasonable person wouldhave deduced given all the circumstances,” but rather “whether the service provider deliberatelyproceeded in the face of blatant factors of which it was aware.” 1938 The court also quoted fromthe legislative history of the DMCA that apparent knowledge requires evidence that a serviceprovider “turned a blind eye to ‘red flags’ of obvious infringement.” 1939To establish apparent knowledge, Corbis submitted evidence that Amazon receivednotices that zShops vendors were infringing the copyrights of unrelated parties by sellingcelebrity photographs. The court found this evidence insufficient, because it was not clearwhether any of the vendors receiving such notices were vendors in the instant litigation andwhether the notices complied with the requirements of Section 512(c)(3). If the notices werecompliant, Amazon asserted that it promptly canceled a listing after receiving a notice ofinfringement, an assertion that Corbis did not challenge. 1940In any event, in a more significant ruling, the court held that third party notices do not, inthemselves, constitute red flags. As noted in the legislative history, evidence of blatantcopyright infringement will often derive from information on the offending site itself. The courtnoted that even if the notices had caused Amazon to examine the content of the zShops sites,Corbis had not shown that those sites contained the type of blatant infringing activity that wouldhave raised a red flag for Amazon. Accordingly, Corbis had failed to establish apparentknowledge of infringement on the part of Amazon. 1941– Whether Amazon Had the Right and Ability to Control the Infringing Activity. Corbisargued a right and ability to control on Amazon’s part from the fact that it had terminated thezShops defendants on the same day Corbis filed and served its complaint. The court cited theCCBill and Costar cases for the proposition that the right and ability to control prong cannot besatisfied merely by the ability of a service provider to remove or block access to materials postedon its website or stored on its systems. Nor did the fact that Amazon advertised the zShops1938 Id. at 1108 (quoting 3 M. Nimmer & D. Nimmer, Nimmer on <strong>Copyright</strong> § 12B.04[A][1], at 12B-49 (2004)).1939 Corbis, 351 F. Supp. 2d at 1108 (citing H.R. Rep. No. 105-551 Part 2, at 42 (1998)).1940 Corbis, 351 F. Supp. 2d at 1108.1941 Id. at 1108-09.- 418 -