“materials through a system or network controlled or operated by or for the service
provider”).^2311 The holdings of the Napster and Aimster courts on this point, if adopted by other
courts, will make it difficult for the Section 512(a) safe harbor ever to apply to a peer-to-peer
architecture. The court rejected Aimster’s argument that “through” should be interpreted to
mean “by means of” or “by the help or agency of.”^2312 Finally, the court noted that Aimster was
ineligible for the Section 512(a) safe harbor because its encryption of the information transferred
between users constituted a modification of that information, which Section 512(a) does not
permit.^2313
On appeal, the Seventh Circuit affirmed that Aimster was not entitled to any of the safe
harbors of the DMCA, but based its conclusion solely on the ground that Aimster had not
complied with the predicate conditions of Section 512(i). “Far from doing anything to
discourage repeat infringers of the plaintiffs’ copyrights, Aimster invited them to do so, showed
them how they could do so with ease using its system, and by teaching its users how to encrypt
their unlawful distribution of copyrighted materials disabled itself from doing anything to
prevent infringement.”^2314
d. Perfect 10 v. CCBillThe District Court’s Decision.The plaintiff, Perfect10, owner of the copyrights in an extensive collection of
pornographic photos, brought a copyright infringement lawsuit against CWIE, an OSP hosting
various sites that allegedly contained infringing copies of Perfect10’s photos, as well as several
related third parties providing ancillary services to such sites: IBill, a company that processed
payments for online merchants, Internet Key, an age verification service for adult content
websites, and CCBill, a provider of a fully automated Internet service that enabled consumers to
use credit cards or checks to pay for subscriptions or memberships to e-commerce venues created
and offered by CCBill’s clients.^2315 Each of the defendants raised various of the DMCA safe
harbors as defenses, of which the Section 512(a) defenses will be discussed here (the remaining
defenses are discussed in the subsections below).
Perfect 10 challenged the various defendants’ ability to rely on the safe harbors for failure
to comply with the predicate requirements of Section 512(i) as well as failure to meet the
substantive criteria of the individual safe harbors. The court considered the factual posture of
each of the defendants in turn, and the case is particularly interesting because it is the first to
comprehensively adjudicate the adequacy of specific language comprising a policy to terminate
repeat infringers. The court began its analysis with some general observations about the DMCA,
(^2311) Id. at 659-60.
(^2312) Id. at 660.
(^2313) Id. at 660 n.19.
(^2314) In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003), cert. denied, 124 S. Ct. 1069 (2004).
(^2315) Perfect 10, Inc. v. CCBill, 340 F. Supp. 1077, 1082-84 (C.D. Cal. 2004).