webmasters could not simply move infringing materials from site to site. Instead, Cybernet had
only removed from its search engine and links page any site about which it had received a notice
of infringement, without ever refusing to provide further services to the operators of those sites.
Accordingly, the court concluded that Cybernet had not reasonably implemented a policy to
terminate repeat infringers from its service and had therefore not satisfied the predicate
requirements of Section 512(i) for the safe harbors.^2480
The court further ruled that, even if Cybernet could be found to have satisfied the
predicate requirements of Section 512(i), it still would not be eligible for the safe harbor of
Section 512(c) for two reasons: defective implementation of notice procedures required by
Section 512(c) and receipt of a direct financial benefit from infringing activity that it had a right
and ability to control.
With respect to the defective implementation of notice procedures, the court noted that
Cybernet’s take down policy required a complaint to comply strictly with all its stated notice
requirements before Cybernet would take action, and there was no indication that Cybernet tried
to work with parties whose notice was deficient but satisfied the minimal requirements of
Section 512(c)(3)(B)(ii).^2481 In addition, Cybernet’s notice requirements did not allow for
submission of a representative list of copyrighted works being infringed – they required the
specific web page at which a given infringing work was located, “rather than the site.”^2482
Cybernet’s counter-notification procedures were also ruled defective. The court held that
the counter-notification procedures of the DMCA implicate the requirement of a reasonably
implemented Section 512(i) policy “because there is an implication that a party who cannot sign
the required statement is a knowing infringer. Thus, the counter-notification procedures appear
to serve the generally self-policing policy that section 512 reflects.”^2483 Cybernet’s counter-
notification procedures provided that, if an alleged infringer stated under penalty of perjury that
it had removed the named infringing material, the alleged infringer’s access to the service would
be restored. The court held that this policy “allows Cybernet to reinstate an infringer without the
Congressionally-required statement and provides cover for Cybernet to water down its
termination policy by treating these minimalist take-down statements as neither an admission nor
a denial of the copyright infringement allegations, regardless of how blatant the infringement
might be.”^2484
The court also concluded that the Section 512(c) safe harbor was not available for the
further reason that Cybernet received a financial benefit “directly attributable” to infringing
activity with respect to which it had the right and ability to control. The court noted that the
direct financial benefit requirement was satisfied for the same reasons noted in its analysis of
(^2480) Id. at 1178-79.
(^2481) Id. at 1179-80.
(^2482) Id. at 1180.
(^2483) Id.
(^2484) Id.