Advanced Copyright Issues on the Internet - Fenwick & West LLP

The court found stronger evidence of actual knowledge of infringement. The court notedthat the RIAA letters of Oct. 27, 1999 and Apr. 18, 2000 to MP3Board’s ISP, which wereforwarded on to MP3Board, were insufficient to constitute notice under DMCA Section512(d)(3). “By solely listing artists’ names, and neglecting to specify any infringing links oreven particular songs, the letter(s) did not include ‘identification of the reference or link, tomaterial or activity claimed to be infringing.” 2136 Accordingly, MP3Board’s failure to delete anylinks in response to those letters could not give rise to any liability. 2137 However, the letter ofMay 25, 2000 complied with DMCA notification requirements because it not only namedparticular artists along with specified songs, but was accompanied by printouts of screen shots ofMP3Board’s web site, on which the RIASA highlighted and placed an asterisk next to 662 linkswhich the RIAA believed to infringe upon the record companies’ copyrights (although no URLaddresses were provided by the RIAA). 2138 Despite the adequacy of notice via the May 25, 2000letter, the court nevertheless held that issues of material fact existed regarding MP3Board’sknowledge of infringing activity. 2139With respect to vicarious liability, the court similarly found that issues of material factconcerning MP3Board’s right and ability to control infringing activity, and whether it had adirect financial interest in the activity, precluded summary judgment. It also found materialissues of fact concerning whether MP3Board qualified as a “service provider” for purposes ofthe Section 512(d) safe harbor, thereby at least implicitly recognizing that the Section 512(d)safe harbor could apply to vicarious liability. With respect to the issue of control, the courtcuriously found issues of material fact, even though it stated, citing the Ninth Circuit’s Napster Idecision, that a defendant’s ability to block infringers’ access to a particular environment for anyreason constitutes proof of its right and ability to supervise and control the infringing activities.The court further noted as evidence of control that MP3Board could delete links from itsdatabase and thus prevent them from being displayed in response to user queries, and that it hadin fact removed offending links from the site and banned repeat offenders of its rules fromposting any additional links. 2140With respect to the issue of financial benefit, the court again curiously found issues ofmaterial fact, despite the fact that it cited only evidence from which direct financial benefit couldbe inferred. Specifically, the court, against citing Napster I, noted that infringement whichincreases a defendant’s user base or otherwise acts as a draw for customers constitutes a directfinancial interest. It also cited testimony from MP3Board’s principals that the revenueMP3Board received from banner advertisements on the site was directly tied to the number of2136 Id. at *26 (quoting Section 512(d)(3)).2137 Id. at *27.2138 Id. at *28-29.2139 Id. at *30.2140 Id. at *33-34.- 467 -