Advanced Copyright Issues on the Internet - Fenwick & West LLP

court ruled that the post-litigation instances of A9 receiving information of claimedinfringements did not constitute notification under Section 512(c)(3) with respect to prelitigationinfringements claimed in the original complaint. Perfect 10 also cited Ressmeyer’sletter to Zada that was copied to A9’s copyright agent Leblang. The court rejected this basisalso, noting that the letter did not indicate that Amazon forwarded any DMCA notices to A9 anddid not provide any information about the infringing material, so the letter alone did not establisheither that A9 received any of Perfect 10’s notices or that it had actual knowledge of specificinfringing activities available using its system. 1988Perfect 10 argued that Amazon should be equitably estopped from asserting that Perfect10 improperly sent its notices to Amazon because the Conditions of Use posted on Amazon’ssite allegedly instructed copyright owners to send DMCA notices regarding its affiliates directlyto Amazon. The court rejected this argument, noting that nowhere in the Conditions of Use didAmazon purport to include A9 among its affiliates and Amazon’s filing with the <strong>Copyright</strong>Office identifying the subsidiary entities for which Amazon’s copyright agent would acceptcomplaints did not include A9. 1989Perfect 10 further argued that Amazon was the proper recipient of the notices because theinfringing activity took place through the A9 search box that was on the Amazon web site. Thecourt rejected this argument, holding that the presence of the search box on Amazon’s web sitedid not make Amazon the proper recipient because A9 had designated its own copyright agentand Zada knew that A9 was a separate corporation entity. Perfect 10 also contended thatAmazon was obligated to notify A9 of the alleged infringements because it owned and hostedA9. The court also rejected this argument, noting Perfect 10 had cited no authority that wouldrequire one OSP, by virtue of its ownership or hosting of another OSP, to pass along a DMCAnotice, where the two OSPs were distinct corporate entities and each had properly designated itsown copyright agent. 1990Lastly, Perfect 10 argued that A9 had failed to comply fully with the requirements ofSection 512(c)(2) in designating a copyright agent because A9 had not provided an email addressfor its copyright agent, but rather a URL for A9’s online complaint form. The court held thatthis departure from the specific requirements of Section 512(c)(2) was inconsequential, and therewas no genuine dispute that the <strong>Copyright</strong> Office designation enabled anyone who saw it tocontact A9’s designated agent, through mail, fax, telephone, or the online complaint form.Accordingly, the court ruled that A9 was entitled to a safe harbor under Section 512(c), andgranted A9’s motion for summary judgment as to contributory copyright infringement based onthat safe harbor. 19911988 Id. at *13-15.1989 Id. at *15-16.1990 Id. at *17-18.1991 Id. at *20-23.- 430 -