Advanced Copyright Issues on the Internet - Fenwick & West LLP

Turning to the issue of control, the court ruled, citing Costar Group, Inc. v. Loopnet,Inc. 2021 and Perfect 10 v. Cybernet Ventures, Inc., 2022 that the mere ability to disconnect thewebmasters’ access to Internet Key’s service was not sufficient under the DMCA to demonstratea right and ability to control the infringing activity. Because no other control had been shown,Internet Key was entitled to summary judgment under the Section 512(d) safe harbor. 2023The parties filed an appeal of the rulings in this case with respect to CCBill and CWIE,although not with respect to Internet Key. On appeal, CCBill argued that it should be entitled tothe immunity of Section 512(d) because, after processing a consumer’s credit card and issuing apassword granting access to a client website, it displayed a hyperlink so that the user couldaccess the client website. The Ninth Circuit rejected this argument, noting that, even if thedisplayed hyperlink could be viewed as an information location tool, Section 512(d) provides asafe harbor only for infringement of copyright by reason of the provider referring or linkingusers to an online location containing infringing material or activity. Perfect 10 had not claimedthat CCBill infringed its copyrights by providing a hyperlink, but rather through CCBill’sperformance of other business services for the infringing websites. Accordingly, even ifCCBill’s provision of a hyperlink were immune under Section 512(d), CCBill could not receiveblanket immunity under Section 512(d) for its other services. 2024g. Columbia Pictures v. Fung. In Columbia PicturesIndustries, Inc. v. Fung, 2025 the defendants operated BitTorrent sites through which users couldsearch indexes for dot-torrent files pointing to infringing movies and other content. The courtfound the defendants liable for inducement of infringement and rejected assertion of a safeharbor under Section 512(d). The plaintiffs had established that the defendants had reason toknow of their users’ infringing activities (plaintiffs’ expert testified that approximately 95% ofdownloads occurring through the defendants’ sites were downloads of infringing content) andtherefore the defendants had failed to establish the first requirement of the Section 512(d) safeharbor that they were not aware of facts or circumstances from which infringing activity wasapparent. 2026 The court found that the defendants also had adequate knowledge of infringingactivity under the “red flag” test to have a duty to act to removing links to infringing content.The defendants had not introduced any evidence that they acted expeditiously to remove ordisable access to infringing material. In addition, the court held the defendants had failed toraise a triable issue of fact regarding the second requirement of the Section 512(d) safe harbor,because they had received a financial benefit directly attributable to the infringing activity,which acted as a major draw for users to the site and from which the defendants derived revenue,and they had the right and a ability to control such activity. 20272021 164 F. Supp. 2d 688, 704 (D. Md. 2001), aff’d, 373 F.3d 544 (4 th Cir. 2004).2022 213 F. Supp. 2d 1146, 1181 (C.D. Cal. 2002).2023 Perfect 10 v. CCBill, 340 F. Supp. 2d at 1098.2024 Perfect 10, Inc. v. CCBill LLC, 481 F.3d 751, 765-66 (9 th Cir.), cert. denied, 2007 U.S. LEXIS 12812 (2007).2025 2009 U.S. Dist. LEXIS (C.D. Cal. Dec. 21, 2009).2026 Id. at *17 & *61.2027 Id. at *55, *61-66, & *62 n.27..- 438 -