amount of policing for future infringements an OSP may be required to do may depend upon the
level of knowledge it possesses concerning the scope of infringing activity on its system.
Although not stated as such in the Napster cases, those cases bear evidence of the principle, for
the Ninth Circuit in that case imposed a heavy duty of policing in a case in which it seemed to
have concluded that Napster had a substantial level of knowledge of infringing activity using its
system.
d. Perfect 10 v. Cybernet VenturesThe Section 512(c) safe harbor was further adjudicated in the case of Perfect 10, Inc. v.
Cybernet Ventures, Inc.,^2476 the facts of which are set forth in Section III.C.2(f) above.
Assuming that Cybernet qualified as a “provider of online services” within the definition of
Section 512(k),^2477 the court turned to whether Cybernet had satisfied the predicate requirements
of Section 512(i) that it adopt and reasonably implement a policy providing for termination in
appropriate circumstances of repeat copyright infringers. Disagreeing with the ruling of the
Ellison case discussed in Section III.C.6(b)(1)(i) above, which held that Section 512(i) does not
require a service provider to actually terminate repeat infringers or even to investigate
infringement, but rather merely to establish a threat of termination for repeat infringement, the
court in Perfect 10 v. Cybernet Ventures held that Section 512(i) does in fact imply some
substantive responsibilities for service providers. Although it does not require active
investigation of possible infringement, or taking action for isolated infringing acts by single
users, or addressing “difficult infringement issues,” or even actively monitoring for copyright
infringement, the court concluded that when confronted with “appropriate circumstances,”
Section 512(i) requires a service provider to reasonably implement termination.^2478
These circumstances would appear to cover, at a minimum, instances where a
service provider is given sufficient evidence to create actual knowledge of blatant,
repeat infringement by particular users, particularly infringement of a willful and
commercial nature. ... Under this reading, section 512(i) is focused on infringing
users, whereas 512(c) is focused primarily on the infringing material itself.^2479Analyzing the interplay between the requirements of Sections 512(i) and 512(c), the court
viewed “512(i) as creating room for enforcement policies less stringent or formal than the ‘notice
and take-down’ provisions of section 512(c), but still subject to 512(i)’s ‘reasonably
implemented’ requirement.” The court ruled that Cybernet had not satisfied the requirements of
Section 512(i). Cybernet had not submitted any documentary evidence that it had ever taken
action against individual webmasters who repeatedly put up infringing sites so that such
(^2476) 213 F. Supp. 2d 1146 (C.D. Cal. 2002).
(^2477) The court noted that, although the definition is quite broad, its applicability to Cybernet was made a bit
complicated by the fact that Cybernet insisted that it did not host any infringing images and that no image files
passed through any of its computers, but rather that it was purely a provider of age verification services. Id. at
1175.
(^2478) Id. at 1176.
(^2479) Id. at 1177.