indicate potentially infringing activity.^2427 The court rejected these arguments, first noting the
Catch 22 that would arise if the mere ability to remove infringing materials were sufficient to
satisfy the control prong, since the DMCA requires an OSP to remove infringing materials:
[T]he ‘right and ability to control’ the infringing activity, as the concept is used in
the DMCA, cannot simply mean the ability of a service provider to remove or
block access to materials posted on its website or stored in its system. To hold
otherwise would defeat the purpose of the DMCA and render the statute internally
inconsistent. The DMCA specifically requires a service provider to remove or
block access to materials posted on its system when it receives notice of claimed
infringement. The DMCA also provides that the limitations on liability only
apply to a service provider that has ‘adopted and reasonably implemented ... a
policy that provides for the termination in appropriate circumstances of [users] of
the service provider’s system or network who are repeat infringers.’ Congress
could not have intended for courts to hold that a service provider loses immunity
under the safe harbor provision of the DMCA because it engages in acts that are
specifically required by the DMCA.”^2428Nor could eBay’s voluntary practice of engaging in limited monitoring of its website for
apparent infringements satisfy the control prong. The court cited a passage of the legislative
history of the DMCA stating that courts “should not conclude that the service provider loses
eligibility for limitations on liability under section 512 solely because it engaged in a monitoring
program.”^2429 Finally, the court noted that the infringing activity actually took place offline in
the form of the sales and distribution of pirated copies of “Manson,” and that eBay could not
control such offline activity.^2430
The court concluded that eBay had established that it met the test for the safe harbor
under Section 512(c), and accordingly granted eBay summary judgment on the plaintiff’s
copyright claims.^2431
Important Principles. The Hendrickson v. eBay case establishes a number of significant
points about the Section 512(c) safe harbor. First, insofar as the OSP receives notice of alleged
infringement on its system from the copyright holder, such notice must be in writing and must
(^2427) Id. at 1093 & n. 14.
(^2428) Id. at 1093 (citations omitted).
(^2429) Id. at 1094 (quoting House Report 105-796 at 73 (Oct. 8, 1998)).
(^2430) 165 F. Supp. 2d at 1094. This is an interesting holding, since removing the listing from eBay’s service would
have had the derivative effect of controlling the ability of users to make offline purchases and distributions in
the first place. The same rationale would seem to apply to the Napster service, in which Napster could not
control whether its users elected to make downloads of allegedly infringing materials posted on the Napster
index, which downloads did not pass through the Napster servers. Notwithstanding this fact, the district court in
the Napster case, as discussed above, found that Napster did in fact have sufficient “control” over the infringing
activity by virtue of its control over the listings in the Napster index.
(^2431) Id. The court also held that eBay’s immunity under the safe harbor extended to the plaintiff’s claims against
eBay employees. Id. at 1094-95.