infringement is occurring.”^2537 Citing various previously decided cases, the court noted that
examples of such blatant infringement may include statements from the vendor that a product is
bootlegged or pirated, chat rooms hosted by the service provider in which users discuss how the
service can be used to circumvent copyright laws, or the offering of hundreds of audio files in a
single day for peer to peer copying. Corbis had presented no such examples of blatant infringing
activity on the vendor defendants’ zShops sites.^2538
In another significant ruling, the court held that notices from copyright owners under
Section 512(c)(3) do not, of themselves, necessarily establish evidence of blatant or repeat
infringement. “A copyright owner may have a good faith belief that her work is being infringed,
but may still be wrong. The notification requirement does not take into account that a vendor
may have ‘a legitimate fair use defense, or can otherwise invoke any of the myriad other factors
that go into evaluating a copyright infringement claim.’ Although the notices have brought the
listings to Amazon’s attention, they did not, in themselves, provide evidence of blatant copyright
infringement.”^2539 The court ruled that knowledge of blatant, repeat infringement cannot be
imputed merely from the receipt of notices of infringement. Instead, there must be additional
evidence available to the service provider to buttress the claim of infringement supplied by the
notices.^2540 The court went on to state, “In this regard, this Court respectfully disagrees with
CCBill, in which the district court for the Central District of California held that receipt by the
service provider of two or more DMCA compliant notices about one of its users required
termination under § 512(i). Although there may be instances in which two or more DMCA
compliant notices make a service provider aware of a user’s blatant, repeat infringement, the
notices alone do not make the user’s activity blatant, or even conclusively determine that the user
is an infringer.”^2541
The court noted that, other than the Section 512(c)(3) email notices of infringement, there
was no evidence suggesting that Amazon would have been able to tell, merely by looking at the
listings of the two vendors, that the posters and photos being sold infringed another’s copyrights.
Without some evidence from the site raising a red flag, Amazon would not know enough about
the photograph, the copyright owner, or the user to make a determination that the vendor was
engaging in blatant copyright infringement. In addition, one of the vendors had unequivocally
stated to Amazon that it had the right to sell all of the posters in its inventory. The other vendor
had told Amazon that all of its products were officially licensed. The court concluded that for
Amazon to determine that the two vendors were infringers, it would have had to conduct the type
of investigation that the courts and Congress had found unnecessary.^2542
(^2537) Id. at 1104-05.
(^2538) Id. at 1005.
(^2539) Id. (citation omitted).
(^2540) Id. at 1105-06.
(^2541) Id. at 1105 n.9 (citation omitted).
(^2542) Id. at 1106.