- Whether Amazon Had Knowledge of Infringement. Having concluded that Amazon
satisfied all predicate conditions of Section 512(i), the court then turned to the conditions of the
Section 512(c) safe harbor that Amazon had to establish – that it did not have knowledge of
infringing activity or acted expeditiously to remove infringing materials upon gaining
knowledge, and that it did not receive a financial benefit directly attributable to any infringing
activity that it maintained the right and ability to control. Because Corbis did not challenge
Amazon’s claim that it acted expeditiously to remove or disable access to allegedly infringing
material, the court turned to the knowledge and control prongs.^2543
In view of the fact that Corbis did not challenge that Amazon expeditiously removed
access to allegedly infringing material, it is somewhat curious that the court engaged in such an
extensive analysis of the knowledge prong of the Section 512(c) safe harbor. Nevertheless, the
court issued some important rulings about the knowledge prong that were consistent with its
other rulings to afford a broad scope to the Section 512(c) safe harbor.
Because Corbis had chosen not to send notices of infringement to Amazon before filing
its lawsuit, Amazon had no actual knowledge of the alleged infringements of Corbis’
copyrighted images, and the court turned its analysis to whether Corbis was aware of facts or
circumstances from which infringing activity was apparent. Corbis submitted evidence of
notices provided by other copyright holders addressing non-Corbis photos and evidence
suggesting that Amazon was aware that Corbis licensed celebrity photos, from which Corbis
argued that Amazon should have known that zShops vendors sold infringing Corbis images.
The court rejected this evidence as insufficient to establish a material issue of fact
regarding Amazon’s actual or apparent knowledge of infringing material on the zShops platform.
A mere general awareness that a particular type of item may be easily infringed is insufficient to
establish actual knowledge. With respect to apparent knowledge, the court cited the Nimmer
copyright treatise for the proposition that the standard is not “what a reasonable person would
have deduced given all the circumstances,” but rather “whether the service provider deliberately
proceeded in the face of blatant factors of which it was aware.”^2544 The court also quoted from
the legislative history of the DMCA that apparent knowledge requires evidence that a service
provider “turned a blind eye to ‘red flags’ of obvious infringement.”^2545
To establish apparent knowledge, Corbis submitted evidence that Amazon received
notices that zShops vendors were infringing the copyrights of unrelated parties by selling
celebrity photographs. The court found this evidence insufficient, because it was not clear
whether any of the vendors receiving such notices were vendors in the instant litigation and
whether the notices complied with the requirements of Section 512(c)(3). If the notices were
(^2543) Id. at 1106-07.
(^2544) Id. at 1108 (quoting 3 M. Nimmer & D. Nimmer, Nimmer on Copyright § 12B.04[A][1], at 12B-49 (2004)).
(^2545) Corbis, 351 F. Supp. 2d at 1108 (citing H.R. Rep. No. 105-551 Part 2, at 42 (1998)).