notification of a representative list of copyright works being infringed, rather than always
requiring an exact itemization of the allegedly infringed works. It is unclear from the opinion
whether the representative list possibility must be an explicitly stated part of the service
provider’s formal notification procedures, or whether it would be sufficient for the service
provider to in fact accept such representative list and act on it. Second, the court interpreted the
counter-notification procedures of the safe harbors in effect to require a statement by the alleged
infringer that the allegedly infringing materials were in fact not infringing – i.e., that they were
removed “as a result of mistake or misidentification of the material.”^2490 It is not sufficient for
the alleged infringer to inform the service provider that allegedly infringing materials have been
removed. If the alleged infringer does not state that the materials were removed by mistake or
misidentification, or at least somehow otherwise indicate that the materials were not infringing,
the Perfect 10 v. Cybernet Ventures opinion suggests that the service provider is to treat the user
as a knowing infringer with respect to that material and count a “strike” against the user for
purposes of measuring whether the user is a “repeat infringer.”
e. The Aimster/Madster LawsuitsThe facts of the Aimster/Madster lawsuits are set forth in Section III.C.2(c)(3) above. In
that case, Aimster asserted the Section 512(c) safe harbor. As discussed in Section
III.C.6(b)(1)(i).c above, the district court concluded that Aimster was not entitled to any of the
DMCA safe harbors because of its failure to satisfy the Section 512(i) predicate with respect to
implementation of a policy to terminate repeat infringers on its system. In addition, the court
held that Aimster had not satisfied the specific conditions of Section 512(c) because the plaintiffs
were not asserting liability based on the caching of infringing material anywhere within
Aimster’s system, and the infringing materials were not transmitted “through” the Aimster
system.^2491 As discussed in Section III.C.6(b)(1)(i).c, on appeal the Seventh Circuit affirmed the
ruling that the safe harbors were not available to Aimster because of failure to comply with
Section 512(i).^2492
f. Hendrickson v. Amazon.comThe case of Hendrickson v. Amazon.com, Inc.^2493 adjudicated the interesting issue of the
extent of an ISP’s obligation to police its system for infringing material once it receives notice
from a copyright holder that all copies of a particular work are unauthorized. This case involved
facts similar to the Hendrickson v. eBay case discussed above. On Jan. 28, 2002, Hendrickson
sent a letter to Amazon.com notifying it that all copies of the movie Manson on DVD infringed
his copyright. On Oct. 21, 2002, Hendrickson noticed that a Manson DVD was posted for sale
on Amazon’s website. Hendrickson purchased a copy of the DVD, then filed an action against
both Amazon and the poster of the DVD, asserting claims of direct infringement against Amazon
and the poster, and a claim of vicarious liability against Amazon. Amazon moved for summary
(^2490) 17 U.S.C. § 512(g)(3)(C).
(^2491) In re Aimster Copyright Litigation, 252 F. Supp. 2d 634, 660-61 (N.D. Ill. 2002) & n.21.
(^2492) In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003), cert. denied, 124 S. Ct. 1069 (2004).
(^2493) 69 U.S.P.Q.2d 1471 (C.D. Cal. 2003).