will qualify for 17 U.S.C. § 512(d)’s safe harbor for search engines, but not links.”^2858 Because
the court did not elaborate further, it is difficult to understand why the court reached this
conclusion, particularly in view of its rulings with respect to Sections 512(i) and 512(c).
c. The MP3Board CaseIssues relating to the Section 512(d) safe harbor, and particularly its attendant notice
requirements, arose in the case of Arista Records, Inc. v. MP3Board, Inc.,^2859 and are discussed
below in Section III.D.8.
d. The Aimster/Madster LawsuitsThe facts of the Aimster/Madster lawsuits are set forth in Section III.C.2(c)(3) above. In
that case, Aimster asserted the Section 512(d) safe harbor. As discussed in Section
III.C.6(b)(1)(i).c above, the district court concluded that Aimster was not entitled to any of the
DMCA safe harbors because of its failure to satisfy the Section 512(i) predicate with respect to
implementation of a policy to terminate repeat infringers on its system. In addition, the court
held that Aimster had not satisfied the specific conditions of Section 512(d) because it had actual
and constructive knowledge of the infringing activity for the same reasons that it had such
knowledge for purposes of common law contributory liability (see the discussion in Section
III.C.2(c)(3) above), and there was no evidence that Aimster had taken steps to remove or disable
access to infringing material.^2860 In addition, Aimster received a financial benefit directly
attributable to the infringing activity and had the right and ability to control the infringing
activity, again for the same reasons that it had such financial benefit and right and ability to
control for purposes of common law vicarious liability (see the discussion in Section III.C.3(e)
above).^2861 As discussed in Section III.C.6(b)(1)(i).c, on appeal the Seventh Circuit affirmed the
ruling that the safe harbors were not available to Aimster because of failure to comply with
Section 512(i).^2862
e. The Diebold LawsuitDiebold was the manufacturer of electronic voting systems that contained a number of
flaws. A series of internal Diebold emails acknowledging the flaws were published on the
Internet. Diebold sent out dozens of cease and desist letters under the DMCA to websites linking
to or publishing the Diebold emails, demanding that the materials, or links to the materials, be
removed. The Electronic Frontier Foundation filed suit against Diebold on behalf of one of the
ISPs and a news website publisher, arguing that linking to or publishing the materials was a fair
(^2858) Id. at 1182.
(^2859) 2002 U.S. Dist. LEXIS (S.D.N.Y. 2002).
(^2860) In re Aimster Copyright Litigation, 252 F. Supp. 2d 634, 661 (N.D. Ill. 2002).
(^2861) Id.
(^2862) In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003), cert. denied, 124 S. Ct. 1069 (2004).