Accordingly, the Ninth Circuit concluded that Veoh met all the Section 512(c)
requirements and affirmed the entry of summary judgment in its favor.^2631 The court also ruled
that the Veoh investor defendants, who could not claim DMCA protection, could not be liable as
secondary infringers, even if Veoh were found to be liable, in the absence of evidence that they
controlled Veoh’s operations.^2632
m. Perfect 10 v. AmazonIn Perfect 10, Inc. v. Amazon.com, Inc.,^2633 Perfect 10 sought to hold Amazon’s
subsidiary A9, which operated the A9 search engine that enabled searching of content on
Amazon.com and other sources, contributorily liable for infringing postings of Perfect 10’s
copyrighted photos. A9 moved for summary judgment under the Section 512(c) safe harbor on
the ground that it was undisputed that Perfect 10 sent its DMCA notices to Amazon rather than
A9. A9 had designated its own copyright agent in Palo Alto with the Copyright Office. The
Copyright Office designation included, in lieu of an email address for the agent, the URL of an
online DMCA complaint form.^2634 Meanwhile, on Amazon’s web site, Amazon’s “Notice and
Procedure for Making Claims of Copyright Infringement” instructed users to contact Amazon’s
copyright agent in Seattle for notifying Amazon “and its affiliates” of copyright infringement.
The designation Amazon filed with the Copyright Office listed a number of Amazon-owned
entities as “alternative names of service provider” but A9 was not among the listed entities.^2635
Perfect 10’s President, Dr. Zada, sent a letter to Amazon’s copyright agent concerning
alleged infringements in the search results of A9’s search engine. Amazon’s corporate counsel,
Karen Ressmeyer, called Dr. Zada and informed him that Google, not Amazon or A9, provided
the search results and there was nothing Amazon could do about the complaints. After receiving
several additional letters from Zada alleging infringements on A9, Ressmeyer contacted Google
herself and, at Google’s suggestion, forwarded Zada’s letters to Google. She informed Zada of
this fact in a letter, which she copied to Jonathan Leblang, the individual whom A9 had
identified as its copyright agent in its filing at the Copyright Office. Despite all of his
correspondence with Ressmeyer, Amazon never told Zada that he had to send his notices of
infringement to A9 directly. No one at Amazon told him that the notices were not being
forwarded to A9 or that it was not sufficient to send them to Amazon.^2636
Perfect 10 argued that A9 was not entitled to the safe harbor because it had actual
knowledge of infringement by virtue of the fact that it did in fact receive Perfect 10’s DMCA
notices. In part, Perfect 10 relied on post-litigation notices it sent to A9’s copyright agent. The
court ruled that the post-litigation instances of A9 receiving information of claimed
(^2631) Id. at 1031.
(^2632) Id. at 1031-33.
(^2633) 2009 U.S. Dist. LEXIS 42341 (C.D. Cal. May 12, 2009).
(^2634) Id. at 2 & 4-5.
(^2635) Id. at 5-6.
(^2636) Id. at *6-10.