- Whether Amazon Had Reasonably Implemented Its Infringement Policy. To judge the
adequacy of implementation of an infringement policy, the court noted that one must look at two
questions – whether a service provider has adopted a procedure for receiving complaints and
conveying those complaints to users, and whether the service provider nonetheless still tolerates
flagrant or blatant copyright infringement by its users.^2532
Turning to the first question, the court found that Amazon had a sufficient procedure for
implementing its infringement policy. Amazon had a practice to promptly cancel a listing once it
received adequate notice that the listing violated another’s copyrights, to inform the vendor that
its listing may have violated intellectual property rights, to give the vendor the contact
information of the complaining party, and to warn the vendor that repeated violations could
result in permanent suspension from the Amazon site. The fact that certain vendors had been
able to reappear on the zShops platform under pseudonyms did not amount to a failure of
implementation. The court ruled that an infringement policy need not be perfect; it need only be
reasonably implemented. Corbis had not shown any more effective and reasonable method that
Amazon could have used to prevent vendors from re-accessing zShops.^2533
With respect to the second question – tolerance of flagrant abusers – the court noted that
Section 512(i) requires only that repeated copyright infringers be terminated in “appropriate
circumstances” and that a service provider need not conduct active investigation of possible
infringement or make a decision regarding difficult infringement issues.^2534 The court seems to
have set a rather high threshold for what might constitute “appropriate circumstances”:
“Because it does not have an affirmative duty to police its users, failure to properly implement an
infringement policy requires a showing of instances where a service provider fails to terminate a
user even though it has sufficient evidence to create actual knowledge of that user’s blatant,
repeated infringement of a willful and commercial nature.”^2535
Corbis alleged that Amazon tolerated repeated infringers because it had received three
emails (although not from Corbis) in which the sender claimed that zShop listings posted by one
vendor were infringing, and had received seven emails (again not from Corbis) in which the
sender claimed that zShop listings of another vendor were infringing, and had not terminated
either vendor’s access to zShops until after Corbis’ suit was filed. The court found that this
evidence did not amount to a showing that Amazon had knowledge of blatant, repeat
infringement that would have required Amazon to terminate access to the vendors’ zShops
sites.^2536 In a very significant ruling, the court held the following: “Although efforts to pin
down exactly what amounts to knowledge of blatant copyright infringement may be difficult, it
requires, at a minimum, that a service provider who receives notice of a copyright violation be
able to tell merely from looking at the user’s activities, statements, or conduct that copyright
(^2532) Id. at 1102.
(^2533) Id. at 1103-04.
(^2534) Id. at 1104.
(^2535) Id.
(^2536) Id. at 1104.