Finally, the court turned to issues of whether CCBill and CWIE were entitled to the
Section 512(a) safe harbor. Agreeing with the district court, the Ninth Circuit rejected Perfect
10’s argument that CCBill was not eligible for immunity under Section 512(a) because it did not
itself transmit the infringing material. The court noted that Section 512(a) provides a broad grant
of immunity to service providers whose connection with the infringing material is transient. In
the course of an Internet transmission of information through multiple computers, all intervening
computers provide transient connections among users. The court read Section 512(a) to grant
immunity to all service providers for transmitting all online communications, not just those that
directly infringe.^2346
The court noted that CCBill transmitted credit card information and proof of payment,
both of which were digital online communications. However, there was little information in the
record as to how CCBill sent the payment it received to its account holders, and it was unclear
whether such payment was a digital communication, transmitted without modification to the
content of the material, or was transmitted often enough such that CCBill was only a transient
holder. Accordingly, on the record before it, the court ruled that it could not conclude that
CCBill was a service provider under Section 512(a), and remanded to the district court for
further consideration of the issue.^2347
e. Columbia Pictures v. FungIn Columbia Pictures Industries, Inc. v. Fung,^2348 the defendants operated BitTorrent sites
through which users could search indexes for dot-torrent files pointing to infringing movies and
other content. The district court found the defendants liable for inducement of infringement and
rejected assertion of a safe harbor under Section 512(a) – because of the way the BitTorrent
(^2346) Id. at 765.
(^2347) Id. The Ninth Circuit also made an important ruling with respect to Section 230 of the Communications
Decency Act (CDA), which states that “[n]o provider or user of an interactive computer service shall be treated
as the publisher or speaker of any information provided by another information content provider,” and expressly
preempts any state law to the contrary. 47 U.S.C. §§ 239(c)(1), (e)(3). The immunity created by Section
230(c)(1) is limited by Section 230(e)(2), which requires the court to “construe Section 230(c)(1) in a manner
that would neither ‘limit or expand any law pertaining to intellectual property.’” Thus, Section 230 does not
clothe service providers in immunity from “law[s] pertaining to intellectual property.” The CDA does not
contain an express definition of “intellectual property.” The Ninth Circuit expressed the view that, “[b]ecause
material on a website may be viewed across the Internet, and thus in more than one state at a time, permitting
the reach of any particular state’s definition of intellectual property to dictate the contours of this federal
immunity would be contrary to Congress’s expressed goal of insulating the development of the Internet from
the various state-law regimes.” Id. at 768. Accordingly, the Ninth Circuit construed the term “intellectual
property” to mean “federal intellectual property,” and concluded that CCBill and CWIE were eligible for CDA
immunity “for all of the state claims raised by Perfect 10.” Id. Although the only state intellectual property
claims the plaintiff had raised were trademark claims, the Ninth’s Circuit’s seemingly categorical ruling that
Section 230’s website immunity preempts all state intellectual property claims would presumably apply to state
copyright law claims.
(^2348) 2009 U.S. Dist. LEXIS 122661 (C.D. Cal. Dec. 21, 2009), aff’d, 710 F.3d 1020 (9th Cir. 2013).