considered when evaluating whether the service provider had actual or constructive knowledge
of the infringing activity.^2415
Because the plaintiff admitted that he had not strictly complied with the notice
requirements of Section 512(c)(3), the court turned to an analysis of whether his imperfect
attempt to give notice constituted “substantial” compliance, and ruled that it did not because his
notice did not include several key elements for proper notification:
- There was no written statement attesting under penalty of perjury that the information
in the notification was accurate and that the plaintiff was authorized to act on behalf of the
copyright owner, or that the plaintiff had a good faith belief that use of the material in the
manner complained of was not authorized. The court held that the plaintiff’s complete failure to
supply the preceding two elements, even after eBay specifically asked for them, rendered the
plaintiff’s notification of claimed infringement deficient under Section 512(c)(3).^2416 - There was not sufficient information to identify the various listings on eBay that
purportedly offered pirated copies of “Manson,” and the plaintiff had refused to supply such
information when specifically asked by eBay.^2417 The plaintiff contended that it was “not his job
to do so once he has notified eBay of the existence of infringing activity by eBay sellers.”^2418
The court rejected this argument, stating: “The Court recognizes that there may be instances
where a copyright holder need not provide eBay with specific item numbers to satisfy the
identification requirement. For example, if a movie studio advised eBay that all listings offering
to sell a new movie (e.g., ‘Planet X,’) that has not yet been released in VHS or DVD format are
unlawful, eBay could easily search its website using the title ‘Planet X’ and identify the
offensive listings. However, the record in this case indicates that specific item numbers were
necessary to enable eBay to identify problematic listings.”^2419 - There was no written statement to eBay that all DVD copies of “Manson” were
unauthorized copies. Although the plaintiff stated at oral argument that he had orally notified
eBay that all copies of “Manson” in DVD format were unauthorized, this was insufficient
because it was not in writing. “The writing requirement is not one of the elements listed under
the substantial compliance category [of Section 512(c)(3)(A).] Therefore, the Court disregards
all evidence that purports to show Plaintiff gave notice that all DVDs violate his copyright in
‘Manson.’”^2420
(^2415) Id.
(^2416) Id. at 1089-90.
(^2417) Id. at 1090.
(^2418) Id.
(^2419) Id.
(^2420) Id. at 1091. Similarly, noting Plaintiff’s admission that authorized copies of “Manson” had been released in
VHS format, the Court ruled that the plaintiff had offered no explanation to eBay how it could determine which
“Manson” VHS tapes being offered for sale were unauthorized copies. Id.