defendants had failed to raise a triable issue of fact regarding the second requirement of the
Section 512(d) safe harbor, because they had received a financial benefit directly attributable to
the infringing activity, which acted as a major draw for users to the site and from which the
defendants derived revenue, and they had the right and a ability to control such activity.^2882
Finally, the court ruled that, as a general proposition, “inducement liability and the
Digital Millennium Copyright Act safe harbors are inherently contradictory. Inducement
liability is based on active bad faith conduct aimed at promoting infringement; the statutory safe
harbors are based on passive good faith conduct aimed at operating a legitimate internet
business. Here ... Defendants are liable for inducement. There is no safe harbor for such
conduct.”^2883
On appeal, the Ninth Circuit affirmed that the defendants did not qualify for the Section
512(d) safe harbor, but on different grounds. Specifically, the court held that the defendants did
not qualify for the Section 512(d) safe harbor under the knowledge, financial benefit, and right to
control prongs of Section 512(d) for the same reasons those prongs applied to preclude safe
harbor protection under Section 512(c), as discussed in detail in Section III.C.6(b)(1)(iii)(v)
above.^2884
h. Perfect 10 v. GoogleThe rulings of this case with respect to the Section 512(d) safe harbor are discussed in
Section III.C.6(b)(1)(ii) above.
i. Perfect 10 v. YandexIn Perfect 10, Inc. v. Yandex,^2885 Yandex offered a broad range of search functions over
the Internet. Perfect 10 sent hundreds of DMCA takedown notices to Yandex requesting that it
remove links to thousands of allegedly infringing images. Perfect 10 moved for partial summary
judgment that three sample DMCA notices were substantially compliant with the notice
requirements of Section 512(c)(3)(A) and (d)(3) and that Yandex was ineligible for any DMCA
safe harbor defense during the period when it had no DMCA agent registered with the Copyright
Office.^2886
The court granted partial summary judgment with respect to sample notice 1, finding that
it complied with the notice requirements, but denied summary judgment as to sample notices 2
and 3. Sample notice 1consisted of a PDF file that began with a short DMCA notice letter that
described the contents of the DMCA notice itself and requested that the images be taken down.
The notice letter was followed by several pages of screen shots from Yandex’s own image search
(^2882) Id. at 55, 61-66, & 62 n.27.
(^2883) Id. at 67-68.
(^2884) Columbia Pictures Industries, Inc. v. Fung, 710 F.3d 1020. 1047 (9th Cir. 2013).
(^2885) 2013 U.S. Dist. LEXIS 65802 (N.D. Cal. May 7, 2013).
(^2886) Id. at *2-4.