judgment on the ground that it was not liable for direct infringement, since the movie had not
been sold by Amazon, and that it was entitled to the safe harbor of Section 512(c) for the claim
of vicarious liability.^2494
The court first ruled that Amazon was not liable for direct infringement, even though it
had offered the website pages that the seller and buyer used to complete the purchase, because
Amazon was not the actual seller of the item.^2495 With respect to the DMCA safe harbor, the
court first held, consistent with the Aimster/Madster case and the Ninth Circuit’s decision in
Napster I, that the DMCA safe harbors can shield against vicarious liability.^2496 The court then
noted that, although the DMCA places the burden on the copyright owner in the first instance to
monitor the Internet for potentially infringing sales,^2497 “because the DMCA is relatively new,
the question as to how long an adequate notice should remain viable is still unanswered.”^2498
Turning to an analysis of this question, the court noted that it was not the intention of
Congress that a copyright owner could write one blanket notice to all service providers alerting
them of infringing material, thereby relieving himself of any further responsibility and placing
the onus forever on the service provider. However, the court also noted that it would be against
the spirit of the DMCA if the entire responsibility were to lie with the copyright owner to forever
police websites in search of possible infringers.^2499
To resolve a balance between these competing concerns, the court looked to the language
of the safe harbor, noting that to qualify for the safe harbor, Section 512(c) requires that the
service provider not have actual knowledge that material on its system “is infringing” or that
infringing activity “is apparent.”^2500 The court concluded that, by use of the present tense,
Congress intended for the notice to make the service provider aware of the infringing activity
that is occurring at the time it receives the notice.^2501 “If the infringing material is on the website
at the time the ISP receives the notice, then the information, that all Manson DVD’s are
infringing, can be adequate to find the infringing material expeditiously. However, if at the time
the notice is received, the infringing material is not posted, the notice does not enable the service
provider to locate infringing material that is not there, let alone do it expeditiously.”^2502
(^2494) Id. at 1471-72.
(^2495) Id. at 1472.
(^2496) Id.
(^2497) Id. at 1473. In an earlier opinion, the court had ruled that Hendrickson’s Jan. 2002 letter substantially complied
with the DMCA notice requirements. Hendrickson v. Amazon.com, Inc., CV 02-07394 TJH (C.D. Cal. 2003).
(^2498) 69 U.S.P.Q.2d at 1473.
(^2499) Id.
(^2500) Id.
(^2501) Id.
(^2502) Id. at 1473-74 (emphasis in original).