Giganews argued that if it had to extract Message-IDs for the hundreds of millions of messages
identified in DMCA notices it had received, it would not be able to function. Perfect 10 countred
that Giganews did extract Message-IDs for infringing messages reflected in two of its notices
and argued that fact demonstrated that all notices lacking Message-IDs were sufficient to allow
Giganews to locate the messages. Based on this evidence, the court concluded that triable issues
precluded summary adjudication of the issue in Perfect 10’s favor.^2848
Finally, Perfect 10 contended that Giganews could not qualify for the Section 512(c) safe
harbor because the infringing messages were not being stored at the direction of users, in view of
the fact that Giganews copied infringing messages to its servers without the intervention of third
party users and stored them as long it wanted. The court rejected this argument. Because Usenet
messages are propagated automatically once they are posted by a third party user, the court found
such propagation was arguably “at the direction of” a user. The court therefore concluded that
the question of whether Giganews was eligible for the Section 512(c) safe harbor could not be
summarily adjudicated in Perfect 10’s favor.^2849
Ultimately, Giganews did not need to rely on the DMCA safe harbor, as it was able to
obtain summary judgment in its favor based on Perfect 10’s failure to prove the required
elements of direct, contributory and vicarious liability. See Sections II.A.4(v) and III.C.2(n)
above.
(iv) Referral or Linking to Infringing Material
(Information Location Tools) – Section 512(d)
Section 512(d) provides that a Service Provider is not liable for monetary relief, and is
subject only to limited injunctive relief, for referring or linking users to an online location
containing infringing material or activity by using information location tools (including a
directory, index, reference, pointer or hypertext link), provided the Service Provider does not
have actual knowledge that the material is infringing; is not aware of facts or circumstances from
which infringing activity is apparent; does not receive a financial benefit directly attributable to
any infringing activity for which it has the right and ability to control; and, if properly noticed of
the infringing activity by the copyright holder or its authorized agent, or otherwise obtaining
knowledge or awareness of the infringement, responds expeditiously to remove or disable access
to the infringing material.^2850 Section 512(d) does not mention framing as an example of an
(^2848) Id. at 1200-01.
(^2849) Id. at 1202.
(^2850) Section 512(d) provides: “A service provider shall not be liable for monetary relief, or, except as provided in
subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider
referring or linking users to an online location containing infringing material or infringing activity, by using
information location tools, including a directory, index, reference, pointer, or hypertext link, if the service
provider –
(1)(A) does not have actual knowledge that the material or activity is infringing;
(B) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing
activity is apparent; or