Advanced Copyright Issues on the Internet - Fenwick & West LLP

. Perfect 10 v. Cybernet Ventures. The second case toadjudicate the Section 512(d) safe harbor was the case of Perfect 10, Inc. v. Cybernet Ventures,Inc. 2002 As discussed in Section III.C.5(b)(1)(iii)d. above, the court concluded that the defendantCybernet was not entitled to any of the Section 512 safe harbors because it had failed to satisfythe predicate requirements of Section 512(i). Nevertheless, the court, in a one sentence rulingalso concluded that there was “a residual chance that Cybernet will qualify for 17 U.S.C. §512(d)’s safe harbor for search engines, but not links.” 2003 Because the court did not elaboratefurther, it is difficult to understand why the court reached this conclusion, particularly in view ofits rulings with respect to Sections 512(i) and 512(c).c. The MP3Board Case. <strong>Issues</strong> relating to the Section512(d) safe harbor, and particularly its attendant notice requirements, arose in the case of AristaRecords, Inc. v. MP3Board, Inc., 2004 and are discussed below in Section III.D.8.d. The Aimster/Madster Lawsuits. The facts of theAimster/Madster lawsuits are set forth in Section III.C.2(c)(3) above. In that case, Aimsterasserted the Section 512(d) safe harbor. As discussed in Section III.C.5(b)(1)(i).c above, thedistrict court concluded that Aimster was not entitled to any of the DMCA safe harbors becauseof its failure to satisfy the Section 512(i) predicate with respect to implementation of a policy toterminate repeat infringers on its system. In addition, the court held that Aimster had notsatisfied the specific conditions of Section 512(d) because it had actual and constructiveknowledge of the infringing activity for the same reasons that it had such knowledge forpurposes of common law contributory liability (see the discussion in Section III.C.2(c)(3)above), and there was no evidence that Aimster had taken steps to remove or disable access toinfringing material. 2005 In addition, Aimster received a financial benefit directly attributable tothe infringing activity and had the right and ability to control the infringing activity, again for thesame reasons that it had such financial benefit and right and ability to control for purposes ofcommon law vicarious liability (see the discussion in Section III.C.3(e) above). 2006 As discussedin Section III.C.5(b)(1)(i).c, on appeal the Seventh Circuit affirmed the ruling that the safeharbors were not available to Aimster because of failure to comply with Section 512(i). 2007e. The Diebold Lawsuit. Diebold was the manufacturerof electronic voting systems that contained a number of flaws. A series of internal Dieboldemails acknowledging the flaws were published on the Internet. Diebold sent out dozens ofcease and desist letters under the DMCA to websites linking to or publishing the Diebold emails,demanding that the materials, or links to the materials, be removed. The Electronic FrontierFoundation filed suit against Diebold on behalf of one of the ISPs and a news website publisher,2002 213 F. Supp. 2d 1146 (C.D. Cal. 2002).2003 Id. at 1182.2004 2002 U.S. Dist. LEXIS (S.D.N.Y. 2002).2005 In re Aimster <strong>Copyright</strong> Litigation, 252 F. Supp. 2d 634, 661 (N.D. Ill. 2002).2006 Id.2007 In re Aimster <strong>Copyright</strong> Litigation, 334 F.3d 643 (7th Cir. 2003), cert. denied, 124 S. Ct. 1069 (2004).- 434 -