editing tools to attempt to circumvent copyright protection measures that were already on the
site. Accordingly, the editing tools did not disqualify Photobucket from safe harbor
eligibility.^2707
Turning to the knowledge prong, the court again rejected the plaintiff’s argument that her
provision of fifteen notices of infringement of nine different works was sufficient to serve as
DMCA-compliant notice of any and all other unidentified alleged infringements of those nine
works that might appear on the Photobucket site. The court held that notices that do not identify
the specific location of the alleged infringement (such as a URL) are not sufficient to confer
actual notice on the service provider. In those specific instances where the plaintiff validly
notified Photobucket of infringing activity, it was undisputed that Photobucket had acted
promptly to take down the infringing material. Even in instances where notices were non-
compliant, Photobucket had acted to remove the material.^2708
With respect to the control and financial benefit prong, the court held that the mere ability
to remove or block access to materials on the web site is not sufficient to satisfy the control
prong. Rather, “a right and ability to control must take the form of prescreening content,
rendering extensive advice to users regarding content and editing user content.”^2709 Here,
Photobucket had not engaged in any such activity. Although the plaintiff alleged that
Photobucket received a financial benefit from infringements from a profit sharing relationship
with the Kodak defendants, there was no evidence indicating that either the Kodak defendants or
Photobucket capitalized specifically because a given image a user selected to print was
infringing. Rather, the defendants’ profits were derived from the service the provided, not a
particular infringement. Further, Photobucket had no knowledge of which images users might
select to send to the Kodak defendants to be printed, and, as such, Photobucket had no ability to
control whether users requested that infringing material be printed. (The court thus seemingly
grafted a knowledge element into the control prong.)^2710
Next, the court ruled that Photobucket had adequately satisfied the predicate requirement
of designating an agent to receive DMCA notifications. Photobucket posted contact information
of its agent on its web site, including instructions to send notices to “Copyright Agent” at a listed
physical address, email address, or fax. The court held that, although this contact information
did not include a name or phone number, the statute mandates that the service provider provide
only “substantially the following information” referenced in the statute, and by including the
physical address, email address and fax number of the copyright agent, Photobucket had
included sufficient information to have properly designated an agent.^2711
(^2707) Id. at 744-45.
(^2708) Id. at 746-47.
(^2709) Id. at 747-48.
(^2710) Id. at 748.
(^2711) Id. at 748-49.