Finally, Perfect 10 argued that it submitted several emails to CWIE regarding password
hacking web sites that provided passwords to Perfect 10’s web sites and CWIE failed to
discontinue hosting those web sites. The court ruled, however, that Perfect 10 had not submitted
any evidence that the use of the passwords actually resulted in the infringement of Perfect 10’s
copyrights. Accordingly, Perfect 10 had failed to raise any genuine issues of material fact that
CWIE and CCBill did not reasonably implement their repeat infringer policies.^2331
With respect to the applicability of the Section 512(a) safe harbor to CCBill, Perfect 10
argued that CCBill did not fall within that safe harbor because it did not transmit the infringing
material at issue. Perfect 10 argued that Section 512(a) provides protection only for OSPs who
transmit the allegedly infringing material and not other material, such as credit card information.
Once again, however, the court found CCBill entitled to Section 512(a)’s safe harbor because
CCBill provided a “connection” to the material on its clients’ web sites through a system which
it operated in order to provide its clients with billing services. Accordingly, the court granted
summary judgment to CCBill under the Section 512(a) safe harbor.^2332
The Ninth Circuit’s Decision.Perfect 10 appealed the rulings that CCBill and CWIE qualified for immunity under the
Section 512 safe harbors. Turning first to the threshold question of whether CCBill and CWIE
had reasonably implemented a policy for termination of repeat infringers, the Ninth Circuit ruled
that a service provider “implements” a policy “if it has a working notification system, a
procedure for dealing with DMCA-compliant notifications, and if it does not actively prevent
copyright owners from collecting information needed to issue such notifications.”^2333 The court
noted that the statute permits service providers to implement a variety of procedures, “but an
implementation is reasonable if, under ‘appropriate circumstances,’ the service provider
terminates users who repeatedly or blatantly infringe copyright.”^2334
The Ninth Circuit agreed with the district court’s rejection of Perfect 10’s argument that
CCBill and CWIE had prevented the implementation of their policies by failing to keep track of
repeatedly infringing webmasters. Citing the Ellison and Aimster cases, the court ruled that,
although substantial failure to record webmasters associated with allegedly infringing websites
could raise a genuine issue of material fact as to the implementation of the service provider’s
repeat infringer policy for purposes of summary judgment, in this case the record did not reflect
such a failure. Perfect 10 had submitted a single page from CCBill’s and CWIE’s “DMCA Log”
showing some empty fields in the spreadsheet column labeled “Webmasters Name,” and argued
that this page showed no effort to track notices of infringements received by webmaster identity.
The court noted, however, that the remainder of the DMCA Log indicated that the email address
and/or name of the webmaster was routinely recorded in CCBill’s and CWIE’s DMCA Log, and
CCBill’s interrogatory responses also contained a chart indicating that CCBill and CWIE largely
(^2331) Id. at 1101.
(^2332) Id. at 1102-03.
(^2333) Perfect 10, Inc. v. CCBill LLC, 481 F.3d 751, 758 (9th Cir.), cert. denied, 552 U.S. 1062 (2007).
(^2334) Id. at 758-59.