the reasonableness of the investigation should be judged under an objective standard of review,
and that the MPAA had failed to meet that standard because, if it had reasonably investigated the
site by attempting to download movies, it would have discovered that no movies could actually
be downloaded from the site or related links.^2510
The MPAA countered that the “good faith belief” requirement should be a subjective one,
and the Ninth Circuit agreed. Although no court had yet interpreted the standard under Section
512(c), the court noted that several decisions interpreting other federal statutes had traditionally
interpreted “good faith” to encompass a subjective standard. The court also found that the
overall structure of Section 512 supported the conclusion that Section 512(c)(2)(A)(v) imposes a
subjective good faith requirement on copyright owners. Congress included in Section 512(f) a
limited cause of action for improper infringement notifications, imposing liability only if the
copyright owner’s notification is a knowing misrepresentation. Juxtaposing the “good faith”
proviso of the DMCA with the “knowing misrepresentation” provision revealed a statutory
structure intended to protect potential violators only from subjectively improper actions by
copyright owners.^2511
The Ninth Circuit found that the plaintiff had failed to raise a genuine issue of material
fact under the subjective standard regarding the MPAA’s good faith. The statements on the
plaintiff’s web site strongly suggested that movies were available for downloading, and the court
noted that the plaintiff had admitted that his own customers often believed that movies were
available for downloading. Accordingly, the Ninth Circuit affirmed the district court’s ruling on
summary judgment that there was no issue of material fact as to the MPAA’s “good faith belief”
that the plaintiff’s web site was infringing its copyrights.^2512 The Ninth Circuit also affirmed the
district court’s holding that the MPAA’s good faith compliance with the notice and takedown
procedures of the DMCA constituted sufficient “justification” under Hawaiian law to avoid the
plaintiff’s claim for tortuous interference with contractual relations.^2513
h. Perfect 10 v. CCBillThe facts of this case are set forth in Section III.C.6(b)(1)(i)d. above. In that case, the
defendant CWIE, an OSP hosting various sites that allegedly contained infringing copies of
Perfect10’s photos, moved for summary judgment under the Section 512(c) safe harbor. Perfect
10 argued that CWIE was not entitled to the safe harbor because it had actual knowledge of
Perfect 10’s infringements on its clients’ web sites, it was aware of facts or circumstances from
which infringing activity was apparent, it failed to expeditiously remove or disable access to
infringing material of which it had knowledge, and it received a financial benefit directly
attributable to the infringing activity and had the right and ability to control such activity.^2514
(^2510) Id. at 1003-04.
(^2511) Id. at 1004-05.
(^2512) Id. at 1005-06.
(^2513) Id. at 1006.
(^2514) Perfect 10, Inc. v. CCBill, 340 F. Supp. 2d 1077, 1103 (C.D. Cal. 2004).