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Perfect 10, Inc. v., Inc., et al.

Court grants defendant’s motion for summary judgment on contributory copyright infringement claim because plaintiff, who repeatedly sent DMCA take-down notices to parent company of defendant, even though defendant’s website listed a designated agent for DMCA notification, failed to show defendant had actual knowledge of infringement and because defendant substantially complied with the DMCA

Defendant, Inc. operates a search engine and is a wholly-owned subsidiary of On every page of A9’swebsite is a link to its Conditions of Use which include a Notice and Procedure for Making Claims of Copyright Infringement. The Notice instructs users that A9’s Copyright Agent for DMCA take-down notices can be reached at an address and telephone number in Palo Alto, California, or by clicking on a link that takes the user to an online complaint form.

Plaintiff Perfect 10, Inc. sent eight DMCA take-down notices to for alleged infringements that appeared in the search results of defendant A9’s search engine. Plaintiff alleged it sent the take-down notices to because the A9 search engine box could be accessed from the website. Plaintiff did not send the take-down notices to the designated copyright agent identified on the A9 website. Amazon responded to plaintiff’s notices by telephone and letter, saying that Google provided the search results, not Amazon or A9, and subsequently forwarded plaintiff’s take-down notices to Google. Amazon copied A9’s designated copyright agent on the letter to plaintiff stating Amazon had addressed plaintiff’s concerns to Google, but Amazon did not tell plaintiff to send the take-down notices to A9.

Plaintiff filed suit against and A9 for direct, contributory and vicarious infringement, and in October, 2008, the court granted summary judgment for A9 on the direct and vicarious infringement claims. In the subject motion on the contributory infringement claim, A9 moved for summary judgment on the ground that it was entitled to a safe harbor under 17 U.S.C. § 512(c) because it is undisputed that plaintiff sent the take-down notices to instead of A9.

Plaintiff argued that A9 was not eligible for the § 512(c) safe harbor because A9 had actual knowledge of the infringement based on DMCA notices sent to A9 sent post-litigation and Amazon’s letter to plaintiff that was copied to A9’s copyright agent. An ISP is not entitled to the § 512(c) safe harbor if it has “actual knowledge that the material or an activity using the material on the system or network is infringing.” 17 U.S.C. § 512(c)(1)(A)(i). The court refused to find actual knowledge on A9’s part, holding that post-litigation notifications are legally irrelevant and noting that the letter did not indicate that Amazon forwarded plaintiff’s DMCA take-down notices to A9 and did not provide any information about the infringing material.

Plaintiff also argued that A9 should be equitably estopped from asserting that plaintiff improperly sent its notice to Amazon. However, the court found that there is no evidence of any conduct by A9, versus Amazon, that would support the application of estoppel. A9 was not responsible for unclear instructions on Amazon’s website relating to DMCA notices for affiliates, nor did the fact that A9 was copied on a letter support the conclusion that it authorized Amazon to act on its behalf. The court also rejected plaintiff’s contention that Amazon was the proper recipient of the notices due to the fact that the allegedly infringing activity took place on the website. The court said this argument was disingenuous because plaintiff sued A9 because the search results appeared on A9’s website. “The fact that [plaintiff] first came uponA9 through a search box on Amazon’s website does not make Amazon the proper recipient, because A9 had designated its own copyright agent and [plaintiff] obviously knew that A9 was a separate corporate entity.”

The court also rejected plaintiff’s argument that A9 did not comply with the DMCA because it provided a URL for an online form for providing take-down notices, rather than an email address, in its listing with the Copyright Office, holding that A9 substantially complied with the DMCA.