Advanced Copyright Issues on the Internet - Fenwick & West LLP

The court also rejected UMG’s argument that Veoh failed to adequately terminate repeatinfringers because it did not necessarily terminate users who uploaded multiple videos that wereidentified in a single DMCA notice. If a single DMCA notice from the RIAA identified multiplevideos uploaded by one user, Veoh sent the user a first warning. It then terminated the user’saccount if the user subsequently uploaded another infringing video. The court held that thispolicy satisfied Section 512(i)’s requirements, and UMG had pointed to nothing in the statute,legislative history, or case law establishing that such a policy was not reasonable or appropriate.Accordingly, the court granted Veoh’s motion for summary judgment that it was entitled to theSection 512(c) safe harbor. 1983 m. Perfect 10 v. Amazon. In Perfect 10, Inc. v.Amazon.com, Inc., 1984 Perfect 10 sought to hold Amazon’s subsidiary A9, which operated theA9 search engine that enabled searching of content on Amazon.com and other sources,contributorily liable for infringing postings of Perfect 10’s copyrighted photos. A9 moved forsummary judgment under the Section 512(c) safe harbor on the ground that it was undisputedthat Perfect 10 sent its DMCA notices to Amazon rather than A9. A9 had designated its owncopyright agent in Palo Alto with the <strong>Copyright</strong> Office. The <strong>Copyright</strong> Office designationincluded, in lieu of an email address for the agent, the URL of an online DMCA complaintform. 1985 Meanwhile, on Amazon’s web site, Amazon’s “Notice and Procedure for MakingClaims of <strong>Copyright</strong> Infringement” instructed users to contact Amazon’s copyright agent inSeattle for notifying Amazon “and its affiliates” of copyright infringement. The designationAmazon filed with the <strong>Copyright</strong> Office listed a number of Amazon-owned entities as“alternative names of service provider” but A9 was not among the listed entities. 1986Perfect 10’s President, Dr. Zada, sent a letter to Amazon’s copyright agent concerningalleged infringements in the search results of A9’s search engine. Amazon’s corporate counsel,Karen Ressmeyer, called Dr. Zada and informed him that Google, not Amazon or A9, providedthe search results and there was nothing Amazon could do about the complaints. After receivingseveral additional letters from Zada alleging infringements on A9, Ressmeyer contacted Googleherself and, at Google’s suggestion, forwarded Zada’s letters to Google. She informed Zada ofthis fact in a letter, which she copied to Jonathan Leblang, the individual whom A9 hadidentified as its copyright agent in its filing at the <strong>Copyright</strong> Office. Despite all of hiscorrespondence with Ressmeyer, Amazon never told Zada that he had to send his notices ofinfringement to A9 directly. No one at Amazon told him that the notices were not beingforwarded to A9 or that it was not sufficient to send them to Amazon. 1987Perfect 10 argued that A9 was not entitled to the safe harbor because it had actualknowledge of infringement by virtue of the fact that it did in fact receive Perfect 10’s DMCAnotices. In part, Perfect 10 relied on post-litigation notices it sent to A9’s copyright agent. The1983 Id. at *50-51 & *55-56.1984 2009 U.S. Dist. LEXIS 42341 (C.D. Cal. May 12, 2009).1985 Id. at *2 & 4-5.1986 Id. at *5-6.1987 Id. at *6-10.- 429 -