The court rejected two other arguments offered by the plaintiff concerning why he should
not be required to supply eBay with specific item numbers of allegedly infringing copies. First,
he argued that he had supplied eBay with user IDs of four alleged infringers, and the user IDs
should be sufficient notice to locate the listings offering pirated copies of “Manson.” The court
ruled the notice of user IDs insufficient because the email containing the user IDs did not
identify either the listings claimed to be the subject of infringing activity or describe the
infringing activity, nor did it contain a statement attesting to the good faith and accuracy of the
allegations.^2421 Second, the plaintiff argued that eBay could identify listings offering infringing
copies without item numbers because eBay had previously removed two listings even though the
plaintiff did not provide the item numbers. The court rejected this argument also, noting that the
plaintiff had identified one of the sellers that eBay removed, who because it had only a single
listing at the time of removal, eBay had removed out of an abundance of caution, and the record
did not reflect why eBay removed the second listing.^2422
In sum, the court ruled that proper identification under Section 512(c)(3)(A)(iii) should
include the item numbers of the listings that were allegedly offering pirated copies of
“Manson.”^2423 Because the plaintiff had failed to submit a written notice substantially complying
with the notice requirements of Section 512(c), eBay did not have a duty to act under Section
512(c)(1)(C) to remove the allegedly infringing listings, and would therefore be entitled to the
Section 512(c) safe harbor if it met the remaining prongs of the safe harbor test:^2424
- Absence of Actual or Constructive Notice: Because the plaintiff’s notices did not
substantially comply with the notice requirements of Section 512(c), the court ruled that they
could not, as a matter of law, establish actual or constructive knowledge that particular listings
were involved in infringing activity. Since the record showed that eBay otherwise did not have
actual or constructive knowledge before the lawsuit was filed, the court ruled that eBay had
satisfied the first prong of the safe harbor test under Section 512(c)(1)(A).^2425 - Right and Ability to Control the Infringing Activity: Under Section 512(c)(1)(B),
eBay was required to show that it did not receive a financial benefit directly attributable to the
infringing activity in a case in which it had the right and ability to control such activity. The
court ruled that, because the undisputed facts established that eBay did not have the right and
ability to control the infringing activity, the court need not evaluate the financial benefit
element.^2426 Plaintiff argued that eBay had the ability to control infringing activity based on its
ability to remove infringing listings after receiving proper notification, and its program of
prophylactic searching for apparent infringements based on searching its website daily for
generic key words such as “bootleg,” “pirated,” “counterfeit” and “taped off TV” that might
(^2421) Id.
(^2422) Id. at 1091-92.
(^2423) Id. at 1092.
(^2424) Id.
(^2425) Id. at 1093.
(^2426) Id.