In sum, the ALS Scan case reflected a rather low threshold of knowledge of infringing
activity, at least under the specific facts of the case, and a rather lax application of the technical
notice requirements of Section 512(c). The net effect of these rulings was to make the Section
512(c) safe harbor rather fragile for the OSP. Subsequent cases have given the Section 512(c)
safe harbor a stronger reading in favor of the OSP and have insisted on a stricter compliance with
the technical notice requirements on the part of the copyright holder:
b. Hendrickson v. eBayIn Hendrickson v. eBay Inc.,^2409 the plaintiff Hendrickson, a pro se plaintiff, sought to
hold defendant eBay Inc. secondarily liable for the sale through the eBay auction site of
allegedly infringing copies of the documentary film “Manson” in DVD format. The plaintiff
sent a cease and desist letter to eBay, which stated generally that pirated copies of “Manson”
were being offered for sale on eBay, but did not explain which copies of “Manson” were
infringing, nor did it identify the plaintiff’s copyright interest. eBay responded by requesting
that the plaintiff comply with the notice requirements of Section 512(c), and suggesting that the
plaintiff submit a copy of eBay’s “Notice of Infringement” form, which would comply with the
notice requirements of the DMCA and would specify which particular item numbers (each listing
on eBay’s site had its own item number) were infringing so eBay could remove them. The
plaintiff refused to submit the Notice of Infringement form or otherwise specify which particular
items on eBay were allegedly infringing, and instead filed a copyright infringement lawsuit.^2410
eBay asserted the safe harbor of Section 512(c) as a defense. The court began its analysis
by noting that there was no dispute over whether eBay qualified as a “service provider” within
the meaning of Section 512(k)(1)(B).^2411 The court noted that Section 512(c) was the
appropriate safe harbor potentially applicable to eBay because that safe harbor applies to
infringing “activity using the material on” an OSP’s system.^2412
The court then turned to an analysis of the issue of proper notice of infringement. Under
Section 512(c)(1)(C), a service provider’s duty to act to remove material that is the subject of
infringing activity is “triggered only upon receipt of proper notice” substantially compliant with
the required elements of notification set forth in Section 512(c)(3).^2413 As a preliminary matter,
the court rejected the plaintiff’s argument that he need not submit written notification in
compliance with the notice requirements of Section 512(c)(3) “as long as other facts show the
service provider received actual or constructive knowledge of infringing activity.”^2414 The court
replied that, under Section 512(c)(3)(B)(i), if the copyright holder’s attempted notification fails
to comply substantially with the elements of Section 512(c)(3), then the notification cannot be
(^2409) 165 F. Supp. 2d 1082 (C.D. Cal. 2001).
(^2410) Id. at 1084-85.
(^2411) Id. at 1088.
(^2412) Id. (quoting 17 U.S.C. § 512(c)(1)(A)(i)).
(^2413) 165 F. Supp. 2d at 1089.
(^2414) Id.