requirements of Perfect 10’s notices of infringement.^2374 The litigants divided those notices into
Groups A, B, and C, based on when they were sent to Google. The Group A notices were all
sent by email to [email protected] instead of to the address of Google’s designated agent
listed at the Copyright Office and were otherwise deficient for not identifying specifically which
copyrighted works were infringed. Accordingly, the Group A notices were inadequate to
disqualify Google from the Section 512(d) safe harbor.^2375
With respect to the Group B notices, the court held that Google had not met its burden of
showing that there was no dispute of material fact as to whether these notices were valid under
the DMCA. Each notice contained references to dozens or even hundreds of alleged infringing
links. Google argued that the notices were invalid in their entirety because the majority of the
references were invalid since they contained incomplete URLs, lacked image-specific URLs, or
did not reference the copyrighted work with specificity. The court agreed that references having
those deficiencies did not confer adequate notice under the DMCA and Google was not required
to act to remove any entry that did not meet the DMCA requirements. However, other Group B
notices did meet all of the requirements of the DMCA, such as one that contained a complete
URL along with the volume, issue, and page number of the Perfect 10 magazine in which the
image originally appeared. The court noted that the Group B notices enabled Google to scan the
entries to determine their compliance with the DMCA and it would not be an undue burden on
Google to do so. In addition, Perfect 10 offered evidence that in some instances Google waited
between four and seventeen months to process a number of the Group B notices, as well as
evidence that some notices were not processed at all.^2376 Accordingly, the court denied Google’s
motion for summary judgment “as to safe harbor for at least some of the Group B notices.”^2377
Significantly, this statement suggests that the DMCA safe harbors are to be applied on a notice-
by-notice basis.
The Group C notices, like those notices at issue in the Ninth Circuit’s CCBill case,
required Google to move back and forth between several different files in order to determine
whether a given URL was infringing. The Group C notices generally consisted of a cover letter,
a spreadsheet, and a hard drive or DVDs containing electronic files. Where Perfect 10 provided
spreadsheets, the spreadsheets did not identify the infringing URL, but merely the top-level URL
for the entire website. The court noted that Perfect 10 apparently expected Google to comb
through hundreds of nested electronic folders containing over 70,000 distinct files, including raw
image files such as JPEG files and screen shots of Google search results, in order to find which
link was allegedly infringing. In many cases, the file containing the allegedly infringing image
did not even include a URL, or the URL was truncated. The spreadsheets also did not identify
the copyrighted work that was allegedly infringed – Google would have been required to search
through a separate electronic folder supplied by Perfect 10 with its cover letter to the notice of
(^2374) Perfect 10 did not argue that Google received a direct financial benefit from the infringing activity, had the right
and ability to control such activity, and thus could not enjoy safe harbor protection for its web and image search
results. Id. at 20.
(^2375) Id. at 22.
(^2376) Id. at 22-26.
(^2377) Id. at 27.