A Counterpoint to Annalee Newitz’s Comments On the Perfect 10 Ruling
We admire and support the Electronic Frontier Foundation (EFF), however, we disagree with Ms. Newitz's interpretaion of Judge Baird's ruling in the Perfect 10 v. CCBill case, particularly her conclusion that the results are “potentially devastating.” In fact, Judge Baird’s decision provides significantly greater clarity and stability in the relationship between Internet Service Providers (ISPs), their customers, and actual rights holders.
Prior to the CCBill decision, it was clear hosting companies and search engines were ISPs under the Digital Millennium Copyright Act (DMCA). Under Judge Baird’s decision, payment processing companies and age verification or other services that provide hyperlink connections to third-party sites are also eligible for ISP status. Judge Baird correctly ruled that CCBill and iBill are ISPs because they “provide connections” to third-party sites by electronically processing credit card transactions and transmitting user name and password data which allow consumers to access secure members’ areas. She rejected Perfect 10’s argument that “providing connections” was limited to consumers directly accessing or downloading allegedly infringing images through the defendants’ computer systems. Judge Baird also ruled that Internet Key also acted as an ISP by providing hyperlink connections to third-party sites, rejecting the argument that this aspect of the DMCA was reserved exclusively for “traditional search engines.”
Judge Baird also followed previous rulings that DMCA notices not substantially compliant with all six required elements cannot be used as evidence of actual knowledge of alleged infringements. Those elements are: (1) physical or electronic signature of the rights holder or authorized agent; (2) specific identification of the works of the owner that are allegedly infringed; (3) specific identification of the allegedly infringing material; (4) contact information for the complaining party; (5) a statement of good faith belief that the use by the subject of the notice is not authorized; and (6) certification under penalty of perjury that the notice is accurate. In the CCBill case, Perfect 10 sent “notices” that were often general diatribes, simply naming supposedly infringing web sites with no specific identification of the images in question. Judge Baird confirmed that Perfect 10’s general notices were not proper.
Thus, the CCBill decision clearly provides greater predictability and stability in the relationships between ISPs, their customers, and rights holders. It is difficult to see how the system could be gamed as envisioned by Ms. Newitz. A DMCA notice must be from a rights holder or its authorized agent, not from any gadfly seeking to cause trouble for a competitor. The rights holder must specifically identify the copyrighted works that it claims to own. The “good faith belief” element will not excuse false or hazy information submitted to an ISP – that element allows a rights holder to tell the ISP that they do not believe that the use by the target of the notice is subject to a license or legally authorized, where the holder may not have direct knowledge of the manner by which the target acquired the image. The notice must be made under penalty of perjury, for which there are serious consequences. The DMCA provides that any party that knowingly submits false information can be liable for all resulting damages, plus costs and attorneys’ fees.
Our practical risk management and litigation experience supports the conclusion that the problems envisioned in Ms. Newitz’s editorial are unlikely to materialize. Regardless, the voice of the EFF and others would be welcome regarding the circumstances under which more than one compliantDCMA notification must result in termination of the target’s account. The DMCA provides that in order to maintain the DMCA’s protections, the ISP must adopt and reasonably implement a policy providing for “termination in appropriate circumstances” of “repeat infringers.” While Judge Baird’s decision properly relieves pressure on ISPs to terminate customers upon receipt of non-compliant notices, the relationship between compliant notices and termination of a subscriber’s account with the ISP could be further clarified. ISPs may be motivated to maintain DMCA eligibility by terminating an account quickly in order to show reasonable implementation of a repeat infringer policy. Account holders, on the other hand, may feel that termination is an extreme result where there has not been a court determination that they have in fact engaged in infringing activity. Hopefully, the courts will weigh in on this balance in future decisions. In the interim, CCBill may rely upon the established DMCA procedures while operating its content neutral operations.
John P. Flynn is a partner in the Phoenix, Arizona law firm of Tiffany & Bosco. P.A. (www.tblaw.com) and may be contacted at (602) 255-6020 or [email protected].
Jay M. Spillane is a partner in the Los Angeles business litigation firm of Fox & Spillane LLP (www.foxspillane.com) and may be contacted at (310) 229-9300 or [email protected].
The views and opinions expressed in this editorial are those of the authors and do not necessarily represent the editorial opinions or policies of AVN Online, its staff, or publishers.
