the Ninth Circuit with respect to issues of common law secondary liability and fair use (see
discussion in Section II.C.4 above), Google moved for summary judgment that it was entitled to
the safe harbors under Sections 512(b), (c) and (d).^2368
The court first turned to the preliminary issues of whether Google satisfied the safe
harbor threshold condition of implementation of a suitable repeat infringer policy and whether
Perfect 10’s notices were adequate. With respect to a suitable repeat infringer policy, Google
had a system for receiving and processing notifications of infringement and would terminate an
account holder on its Blogger service if it determined that three DMCA notices of infringement
against that blogger were valid.^2369 With respect to its Web Search and Image Search services,
Google did not have account holders, but that fact did not eliminate eligibility for the safe
harbors: “Google points out – and P10 does not dispute – that Web Search, Image Search, and
the caching feature do not have account holders or subscribers. P10 does not contend that
Google must, or even can, have a repeat infringer policy for those services. See 17 U.S.C. §
512(i)(1)(A) (requiring a repeat infringer policy for those services with ‘subscribers and account
holders’).”^2370 The court rejected a challenge by Perfect 10 to the adequacy of Google’s repeat
infringer policy with respect to the Blogger service based on the fact that Google tracked only
email addresses, not the actual names of users. The court held that the DMCA does not impose
an obligation on service providers to track their users in any particular way.^2371
Turning to Google’s assertion of the Section 512(b) safe harbor, the court noted that it
was undisputed that Google’s cache servers did not store images found on a cached page, only
the text – images displayed on a cached page were made available to a viewer by links to their
original source, if they still existed at that source. Accordingly, Perfect 10’s claims for
infringement based on images “located in” Google’s cache were really claims based on Google’s
linking to outside infringing content, to which the Section 512(d) safe harbor would be
relevant.^2372 In any event, the court noted that in none of Perfect 10’s relevant notices of
infringement did it identify any specific material in Google’s cache as infringing, so its notices
were deficient as to the cached pages. The court also rejected Perfect 10’s argument that a notice
identifying a web page necessarily identifies the cached page as well. Accordingly, the court
ruled that it need not decide whether Google would be separately entitled to the Section 512(b)
safe harbor for its caching activity, in addition to the Section 512(d) safe harbor for linking to
allegedly infringing images through its cached pages.^2373
Turning to the applicability of the Section 512(d) safe harbor to Google’s Web Search
and Image Search services, the court examined in detail the adequacy under DMCA
(^2368) Id. at 2-3.
(^2369) Id. at 7, 13.
(^2370) Id. at 13.
(^2371) Id. at 14.
(^2372) Id. at 5-6, 37.
(^2373) Id. at 38 & n.10, 45.