kept track of the webmaster for each website. Accordingly, the district court had properly
concluded that the DMCA Log did not raise a triable issue of fact that CCBill and CWIE did not
implement a repeat infringer policy.^2335
With respect to whether CCBill and CWIE had reasonably implemented their repeat
infringer policies, the Ninth Circuit first noted that to identify and terminate repeat infringers, a
service provider need not affirmatively police its users for evidence of repeat infringement.^2336
Perfect 10 argued that CCBill’s and CWIE’s implementation of their repeat infringer policies
was unreasonable because that had received notices of infringement from Perfect 10, yet the
infringement identified in the notices continued. The Ninth Circuit, however, agreed with the
district court’s rulings that such notices did not substantially comply with the requirements of
Section 512(c)(3). To be substantially compliant, a notice from a copyright holder must
substantially comply with all of Section 512(c)(3)’s clauses, not just some of them.^2337
Specifically, the court noted that a 22,185 page set of notices including pictures with
URLs of Perfect 10 models allegedly posted on CCBill or CWIE client websites did not contain
a statement under penalty of perjury that the complaining party was authorized to act, as required
by Section 512(c)(3)(A)(vi). Other notices sent by Perfect 10 similarly had one or more of the
required elements missing. The court noted that a copyright holder should not be permitted to
cobble together adequate notice from separately defective notices.^2338 “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. We decline to shift a substantial burden from the copyright owner to the provider;
Perfect 10’s separate communications are inadequate.”^2339
The Ninth Circuit disagreed, however, with the district court’s refusal to consider
evidence of notices provided by any party other than Perfect 10 on the basis that such notices
would be irrelevant to Perfect 10’s claims. The court held that CCBill’s and CWIE’s actions
toward copyright holders who were not a party to the litigation would be relevant in determining
whether CCBill and CWIE reasonably implemented their repeat infringer policies. Accordingly,
the court remanded for determination of whether CCBill and/or CWIE implemented its repeat
infringer policy in an unreasonable manner with respect to any copyright holder other than
Perfect 10.^2340
The court next noted that, in importing the knowledge standards of Section 512(c) to the
analysis of whether a service provider reasonably implemented its Section 512(i) repeat infringer
policy, Congress had also imported the “red flag” test of Section 512(c)(1)(A)(ii). Perfect 10
(^2335) Id. at 759-60.
(^2336) Id. at 760.
(^2337) Id. at 760-61.
(^2338) Id. at 761-62.
(^2339) Id. at 762.
(^2340) Id. at 762-63.