infringement containing all of the more than 15,000 images that appeared on Perfect 10’s
website as of June 2007, in order to identify the copyrighted work that was infringed. Thus, no
single document of any of the Group C notices contained all of the information required in a
valid DMCA notification, and the court ruled that the Group C notices were therefore deficient.
Accordingly, the court concluded that Perfect 10 had not raised a genuine issue of material fact
as to whether Google was eligible for safe harbor under Section 512(d) with respect to the Group
C notices.^2378
Next, the court turned to whether Google was entitled to the Section 512(c) safe harbor
with respect to its Blogger service, which some of its account holders had used to upload
allegedly infringing images onto Google’s servers. With respect to the Group B notices, the
court noted that Perfect 10 had not contended in either its opposition papers or in oral argument
that Google had failed to expeditiously process even a single Blogger URL identified within the
Group B notices. With respect to the Group C notices, the court noted that the requirements for a
copyright holder are slightly less stringent under Section 512(c) than under Section 512(d) in that
the former does not explicitly require the copyright holder to provide what the latter does, a
specific “identification of the reference or link” to material or activity claimed to be infringing.
Section 512(c) merely requires the copyright holder to provide “identification of the material that
is claimed to be infringing ... and information reasonably sufficient to permit the service
provider to locate the material.” Nevertheless, the court noted that Google had a tenable
argument that a copyright holder would need to provide the post-URL of a particular Blogger
post in order to constitute information “reasonably sufficient” to permit the location of the
material. However, the court decided it need not address that argument, since the other manifest
deficiencies in the Group C notices – including the lack of specific identification of the
copyrighted material and their unduly complicated organization – prevented them from
imparting knowledge under the statute.^2379
Finally, the court addressed whether Google was ineligible for the Section 512(c) safe
harbor because it received a financial benefit directly attributable to infringing activity that
Google had the right and ability to control. Perfect 10’s only argument that Google had a right
and ability to control the infringing activity on Blogger was that the infringing material was on
Google’s servers and Google could take it down. The court ruled that the mere ability of a
service provider to remove content after it had been uploaded was insufficient as a matter of law
to establish the right and ability to control infringing activity. Accordingly, Google had
demonstrated that it was entitled to the Section 512(c) safe harbor for its Blogger service as a
matter of law.^2380
In sum, the Court granted in part and denied in part Google's motion for partial summary
judgment of entitlement to safe harbor under Section 512(d) for its Web and Image Search,
granted Google's motion for partial summary judgment for its caching feature based on Section
512(d), without having to assess whether it would be separately entitled to safe harbor under
(^2378) Id. at 27-36.
(^2379) Id. at 40-43.
(^2380) Id. at *43-44.