With respect to the Section 512(a) safe harbor, Perfect 10 argued that IBill did not qualify
because it did not transmit the infringing material at issue, but rather only credit card
information. In an important holding, the court read the scope of Section 512(a) very
expansively to cover IBill based on the language of Section 512(a) that affords immunity for
“providing connections for material through a system or network controlled or operated by or for
the service provider.”^2321 The court concluded that IBill was within this language: “IBill
provides a connection to the material on its clients’ websites through a system which it operates
in order to provide its clients with billing services.”^2322 Accordingly, the court granted summary
judgment to IBill under the Section 512(a) safe harbor.^2323
Internet Key. Perfect 10 challenged Internet Key’s compliance with the threshold
requirements of Section 512(i) based on its termination policy, which read as follows:
Banned Webmaster
If a webmaster, identified by either the webmaster’s name, vendorID or common
ownership entity, has had three (3) websites which have been denied participation
in the SexKey program in accordance with this policy, that webmaster will be
denied participation in its program of any webmaster or website in its discretion....
Repeat Offenders
The participation of any website deemed to be a repeat offender will be
terminated.
Banned Websites
Pending receipt of a Counter Notification, participation of the website subject to a
Notification will be suspended. A website will be permanently prohibited from
participating in the SexKey program upon receipt by the Company of a second
Notification.^2324
The court ruled that this policy, which provided that Internet Key would disable access to
an affiliate website after it received a single notification of an infringement, and would
permanently ban a webmaster from Internet Key after it had received three notifications
regarding websites of any particular webmaster, was legally adequate.^2325 “In order for an
infringer to be a ‘repeat’ infringer, he or she must infringe at least twice. Therefore, the Court
finds that Internet Key’s policy of terminating a webmaster after 3 notifications is
reasonable.”^2326
(^2321) Id. at 1091.
(^2322) Id. The court rejected Perfect 10’s reliance on the Aimster case, noting that the Aimster case dealt with the
transmission of material, not the provision of a connection to the material. Id. at 1091-92.
(^2323) Id. at 1092.
(^2324) Id. at 1093-94..
(^2325) Id. at 1094.
(^2326) Id. at 1094 n.12. The court also rejected Perfect 10’s challenge to the reasonableness of Internet Key’s
termination policy on the ground that Internet Key’s web site identified one person as its designated copyright