Perfect 10 next challenged Internet Key’s implementation of its termination policy,
arguing that it had provided Internet Key with 22,000 pages of printouts from SexKey affiliated
web sites which infringed its rights, together with many full-sized printouts of the images that
constituted infringement, and Internet Key did not disable access to the infringing web sites. The
court found Perfect 10’s notices of infringement inadequate under the DMCA. A letter from
Perfect 10’s counsel accompanying the document production failed to identify which documents
were found on Internet Key’s affiliate web sites, did not contain a statement that the information
in the notification was accurate, and did not state that the author had a good faith belief that the
information in the letter was accurate nor was there a declaration under penalty of perjury.
Although the letter identified which images were infringing, it did not identify which copyrights
of Perfect 10 the images infringed. Perfect 10’s notice was therefore not compliant with the
DMCA, and absent a DMCA-compliant notice, the court ruled that Perfect 10 had failed to raise
a genuine issue of material fact concerning whether Internet Key met the threshold requirements
of Section 512(i).^2327
With respect to the Section 512(a) safe harbor, the court ruled that Internet Key’s age
verification service function fell within the functions described in Section 512(a) – specifically,
Internet Key was “providing connections for material” on its client web sites through a system it
operated to provide its clients with adult verification services. The court therefore granted
summary judgment to Internet Key on the Section 512(a) safe harbor for infringement claims
arising after the date it adopted its DMCA policy (but denying summary judgment for
infringement claims prior to the date Internet Key put a DMCA policy into place).^2328
CWIE and CCBill. Perfect 10 challenged the repeat infringer policies of CWIE and
CCBill under Section 512(i) on a number of grounds. First, it argued that their DMCA notice
spreadsheet was missing several webmaster names of its affiliate sites. The court rejected this
challenge, noting that only a few webmaster names were missing from the spreadsheet in
instances where the notice was deficient or the issues were resolved, and such was insufficient to
raise a genuine issue of material fact that CWIE and CCBill did not reasonably implement their
repeat infringer policies.^2329
Second, Perfect 10 argued that CWIE and CCBill had failed to act in response to a
number of infringement notices Perfect 10 had sent. The court found, however, that such notices
were deficient under the DMCA because they identified only the web sites containing allegedly
infringing material, but did not identify the URLs of the infringing images or which of Perfect
10’s copyrights were being infringed.^2330
agent, whereas Internet Key’s owner testified that its agent was a company. The court rejected this challenge,
noting that Internet Key had never failed to respond to notices, and in any event it appeared that Internet Key
likely had more than one individual who responded to notifications of copyright infringement. Id. at 1094.(^2327) Id. at 1095-97.
(^2328) Id. at 1098-99.
(^2329) Id. at 1099-1100.
(^2330) Id. at 1100-01.