providers encrypt the data that identifies the user who posted a message, only the Usenet service
provider with whom an account was registered could decrypt the “X-trace” field in the message
header that stored the user’s name. Many of the messages hosted on Giganews servers were
posted through accounts registered with other Usenet providers. Because Giganews could not
decrypt the X-trace field on such messages, it could not link such messages to any specific users,
and thus could not apply its repeat infringer termination policy to such users. These facts
therefore precluded summary adjudication that Giganews did not reasonably implement its
repeat infringer termination policy.^2846
The court next ruled that Perfect 10 had not established that its five takedown notices at
issue complied with Section 512(c)(3)(A). The notices at issue instructed Giganews to use
certain newsreaders to conduct searches of specific names within certain newsgroups, and then
informed Giganews that all of the messages yielded by those searches on a certain date contained
infringing material. Along with verbose instructions for performing the searches, the notices
included pages of thumbnail images of the infringing materials and/or screen shots of the
newsreader interface reflecting the search results. Giganews contended that the notices were
inadequate because they failed to include the “Message-ID” ( a unique string of letters and
numbers assigned to every Usenet message) for each infringing message. The court was not
convinced that Perfect 10’s approach of pointing to the results of a search performed on a
specific date at a specific time on a specific newsreader, and attaching thumbnail images and
screen shots, amounted to adequate identification of the infringing material as required by
Section 512(c)(3)(A). First, the method pointed only to a list of search results, not to any
material in particular. Second, because material accessible through the Usenet is in a constant
state of flux, there was no certainty that any particular search would yield the exact same results
at different times. Under the plaintiff’s method of identifying infringing material, Giganews
would be required to compare its search results to Perfect 10’s search results to see if they were
the same, and to distinguish between material that infringed Perfect 10’s copyright and material
that did not. The court therefore concluded that it could not resolve summary adjudication in
Perfect 10’s favor that such methodology constituted adequate identification of infringing
material.^2847
In addition, the court noted that under Section 512(c)(3)(A), notices must provide
information reasonably sufficient to permit the service provider to remove the offending material
expeditiously. Giganews argued that only a Message-ID was adequate for the purpose of
removal. In response, Perfect 10 pointed to several other variables in message headers that could
be used in combination to locate a message. The court rejected this argument, noting that a
Message-ID sufficed to locate a message, and adding more variables to the location process only
served to complicate it. The parties submitted evidence that Message-IDs could be extracted
either manually or by a computer program written to extract them automatically. In addition,
third party service providers were available who could prepare DMCA notices with Message-
IDs. Based on this evidence, the court noted that the crux of the parties’ dispute was who must
bear the burden of extracting the Message-IDs associated with the infringing messages.
(^2846) Id.
(^2847) Id. at 1199-1200.