vendor might be infringing another’s copyrights, it would cancel the allegedly infringing listing
and send an email to the vendor, notifying it of the cancellation, identifying a contact email
address for the complaining party, and reminding the vendor that “repeated violations of our
Community Rules could result in permanent suspension from our Auction, zShops, and Amazon
Marketplace sites.”^2527
Corbis complained that the Participation Agreement and Amazon’s related policies were
too vague with respect to copyright infringement, in that they did not include the term “repeat
infringer” and did not describe the methodology employed in determining which users would be
terminated for repeated copyright violations. The court rejected this argument, noting that the
language of Section 512(i) and the overall structure of the DMCA indicate that the user policy
need not be as specific as Corbis suggested. The fact that Congress left the phrase “repeat
infringer” undefined, and chose not to elaborate on what circumstances merit terminating a
repeat infringer’s access, suggested Congress’ intent to leave the policy requirements and the
obligations of service providers loosely defined.^2528 “Given the complexities inherent in
identifying and defining online copyright infringement, § 512(i) does not require a service
provider to decide, ex ante, the specific types of conduct that will merit restricting access to its
services. As Congress made clear, the DMCA was drafted with the understanding that service
providers need not ‘make difficult judgments as to whether conduct is or is not infringing.’”^2529
The court found that the Participation Agreement adequately prohibited the listing,
linking, or posting of any material that violates copyright laws and made clear that those who
violated Amazon’s policies could face a variety of penalties. In addition, the court pointed to
testimony that those accused of copyright infringement were informed that repeated violations
could result in “permanent suspension” from Amazon sites. Accordingly, the court ruled that
Amazon had an adequate user policy.^2530
- Whether Amazon Had Adequately Communicated Its Termination Policy to Its Users.
Corbis argued that Amazon had not adequately communicated its termination policy to its users
because it did not inform them of the internal criteria it used to determine whether to terminate a
user’s access to the site. The court held, however, that Section 512(i) is not so exacting, and that
Amazon needed only inform users that, in appropriate circumstances, it may terminate the user’s
accounts for repeated copyright infringement. The statute does not suggest what criteria should
be considered by a service provider, much less require the service provider to reveal its decision
making criteria to the user. Amazon was required only to put users on notice that they faced
exclusion from the service if they repeatedly violate copyright law, and Amazon had done so.^2531
(^2527) Id.
(^2528) Id. at 1100-01.
(^2529) Id. at 1101.
(^2530) Id.
(^2531) Id. at 1101-02.