The court further ruled that AOL had satisfied the remaining requirements of Section
512(a). The transmission of the plaintiff’s newsgroup message was not initiated by AOL, AOL
did not select the individual postings on the alt.binaries.e-book newsgroup (and the fact that
AOL decided not to carry every newsgroup did not constitute selection of the specific material
giving rise to the claim of infringement^2298 ), AOL did not select the recipients of the material,^2299
and the material was transmitted through AOL’s system without modification of its content.^2300
Accordingly, the court concluded that AOL qualified for the Section 512(a) safe harbor, and that
it therefore needed not reach the issue of whether the Section 512(c) safe harbor also applied.^2301
On appeal, the Ninth Circuit reversed the ruling that AOL was entitled to the Section
512(a) safe harbor on the ground that there were triable issues of material fact concerning
whether AOL had met the threshold requirements of Section 512(i). The Ninth Circuit ruled,
however, that if after remand a jury found AOL to be eligible under Section 512(i) to assert the
DMCA safe harbors, then “the parties need not relitigate whether AOL qualifies for the
limitation of liability provided by § 512(a); the district court’s resolution of that issue at the
summary judgment stage is sound.”^2302
With respect to Section 512(i), the Ninth Circuit found it difficult to conclude that AOL
had reasonably implemented a policy against repeat infringers, because there was ample
evidence in the record suggesting that AOL did not have an effective notification procedure in
place at the time the alleged infringing activities were taking place. Although AOL had notified
the Copyright Office of its correct email address before Ellison’s attorney attempted to contact
AOL and did post its correct email address on the AOL website with a brief summary of its
policy as to repeat infringers, AOL also changed the email address to which infringement
notifications were supposed to have been sent and failed to provide for forwarding of message
sent to the old address or notification that the email address was inactive.^2303 The Ninth Circuit
found that AOL should have closed the old email account or forwarded the emails sent to the old
account to the new one. The fact that AOL had allowed notices of potential copyright
infringement to go unheeded for a period of time was sufficient for a reasonable jury to conclude
that AOL had not reasonably implemented its policy against repeat infringers.^2304
c. The Aimster/Madster Lawsuits(^2298) To impute selection of the infringing material to the ISP, “the better interpretation of 512(2) is that the ISP
would have to choose specific postings, or perhaps block messages sent by users expressing opinions with
which the ISP disagrees.” Id. at 1071.
(^2299) To impute selection of the recipients of the material to AOL, “the better interpretation is that AOL would have
to direct material to certain recipients (e.g. all AOL members whose names start with ‘G’) but not others.”Id.
(^2300) Id. at 1070-72.
(^2301) Id. at 1072 & n.22.
(^2302) Ellison v. Robertson, 357 F.3d 1072, 1074 (9th Cir. 2004).
(^2303) Id. at 1080.
(^2304) Id.