Google Saved Again By DMCA – Im”Perfect” Notices Do Not Establish Actual Notice

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Thumbnail image for Thumbnail image for logo1w.pngA federal court dismissed on summary judgment most of the copyright infringement claims against Google, ruling, in part, that Plaintiff’s notices were not compliant with the requirements of the Digital Millennium Copyright Act (“DMCA”). As a result, the court found that Google was entitled to “safe harbor” protection under various sections of the DMCA.

This is another in a string of DMCA rulings that favor online service providers, place the burden of policing infringement on content owners and demonstrate the courts’ inclination to strictly construe the DMCA requirements. We previously posted about the $1 billion damage claim that Google (and its YouTube subsidiary) avoided in its lawsuit with Viacom by reliance on the DMCA. These cases continue to highlight the business need for ensuring that companies have and comply with effective DMCA policies.

In framing some of the issues, the court stated:

In order to be eligible for any of these three safe harbors under the DMCA, a party must satisfy three threshold conditions. First, the party must be a service provider as defined under 17 U.S.C. § 512(k)(1)(B). Second, the party must have “adopted and reasonably implemented, and inform[] subscribers and account holders of the service provider’s system or network of a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.” 17 U.S.C. § 512(i)(1). Third, the party must “accommodate[] and . . . not interfere with standard technical measures” used by copyright owners to identify or protect copyrighted works. 17 U.S.C. §§ 512(i)(1)-(2).

The court found that Perfect 10 did not dispute that Google met the first and third prongs, but rather it argued that there were issues about whether Google implemented a suitable policy for repeat infringers. But for some of the technologies at issue (e.g., Google’s Web Search, Image Search and caching feature”), Google does not have account holders or subscribers. Even Perfect 10 did not contend that Google must, or even can, have a repeat infringer policy for those services. See 17 U.S.C. § 512(i)(1)(A) (requiring a repeat infringer policy for those services with “subscribers and account holders”). Thus, the court summarily found in Google’s favor on these issues.

The court also addressed issues relating to the “Information Location Tools” safe harbor under Section 512(d) of the DMCA. Here the court found that Google, in many cases, did not have “actual notice” of infringement, despite receiving numerous notices from Perfect 10. The court stated:

As the Ninth Circuit explained in CCBill, “The DMCA notification procedures place the burden of policing copyright infringement–identifying the potentially infringing material and adequately documenting infringement–squarely on the owners of the copyright.” CCBill, 488 F.3d at 1113. P10’s Group C notices do not “identif[y] . . . the copyrighted work claimed to have been infringed . . . .” 17 U.S.C. § 512(c)(3). To refer Google to more than 15,000 images appearing on the entirety of P10’s website falls far short of identifying what may have been infringed. Nor is a reference to the totality of the P10 image collection “a representative list” of “multiple copyrighted works” appearing without authorization at a single infringing site. See 17 U.S.C. § 512(c)(3). Thus, all of P10’s Group C notices lack the identification of the copyrighted work required by section 512(c)(3)(A)(ii).

P10’s Group C notices are additionally defective because they do not contain all of the required information in a single written communication.

The court also addressed the Safe Harbor for caching under Section 512(b) of the DMCA and various other issues.

The case is Perfect 10, Inc. v. Google, Inc. Here is a  copy of the Decision