In Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc.^2641 the defendants operated
hosting services for a number of web sites overseas from which counterfeit Louis Vuitton
merchandise could be purchased. The plaintiff brought claims for direct and contributory
infringement of its copyrights. A jury found the defendants liable for willful contributory
infringement and awarded statutory damages, and found that the defendants were not entitled to
the safe harbors of the DMCA. After the verdict, the defendants filed a motion for JMOL with
respect to the claims.^2642 With respect to the DMCA safe harbor, the court found that the jury
had adequate evidence for denying the applicability of the Section 512(c) safe harbor. The
defendants did not designate an agent with the Copyright Office until about four months after the
lawsuit was filed, so at a minimum they would not be able to claim protection of the safe harbors
prior to designating an agent. In addition, the evidence that the defendants had reasonably
implemented a policy to terminate repeat infringers was limited, at best. For example, the
designated agent for the defendants testified that he did not understand the DMCA's
requirements as to maintaining or implementing the required policy. Other evidence indicated
that the defendants had not terminated certain repeat offenders. Accordingly the court concluded
that the jury had sufficient evidence to find for the plaintiff on the issue of the applicability of the
safe harbor provisions of the DMCA.^2643
o. Viacom v. YouTubeIn Viacom Int’l v. YouTube, Inc.,^2644 the plaintiffs sought to hold YouTube and its owner
Google secondarily liable for the postings by users of copyrighted videos owned by the
plaintiffs. YouTube asserted the DMCA safe harbor under Section 512(c). Each side moved for
summary judgment in the district court.
The District Court’s Opinion
Interestingly, in its opinion, the district court noted that from the plaintiffs’ submissions
on the motion, a jury could find that the defendants not only were generally aware of, but
welcomed, copyright-infringing material being placed on their web site.^2645 Thus, according to
the court, “the critical question is whether the statutory phrases ‘actual knowledge that the
material or an activity using the material on the system or network is infringing,’ and ‘facts or
circumstances from which infringing activity is apparent” in § 512(c)(a)(A)(i) and (ii) mean a
general awareness that there are infringements (here, claimed to be widespread and common), or
rather mean actual or constructive knowledge of specific and identifiable infringements of
individual items.”^2646
(^2641) 2010 U.S. Dist. LEXIS 85266 (N.D. Cal. Mar. 19, 2010), aff’d in part & rev’d in part on other grounds, 658
F.3d 936 (9th Cir. 2011).
(^2642) Id. at 1-2.
(^2643) Id. at 24.
(^2644) 718 F. Supp. 2d 514 (S.D.N.Y. 2010).
(^2645) Id. at 518.
(^2646) Id. at 519.