web sites. The screen shots showed the allegedly copyrighted images in Yandex’s search results
along with corresponding links to the party directly hosting the content. In many instances the
links to the third party sites were truncated, but it was possible to copy the whole link by right
clicking on the image in the file. At the end of each sample notice was a single screen shot from
Perfect 10’s own website that included the allegedly copyrighted images in a four-by-four grid of
images. Yandex argued that sample notice 1 was deficient because it failed to sufficiently
identify the location of the allegedly infringing materials by virtue of the fact that some of the
links in the screen shots were truncated. The court rejected this argument, noting that the
truncated links were generated as part of Yandex’s own search results. The sample notice used
the screen shots to prove that the images were linked from Yandex’s site, not to identify the
location of the allegedly infringing content. Because the full links were available by clicking or
right clicking on the images listed in the search results, sample notice 1 was adequate under the
requirements of the DMCA.^2887
The court did not consider sample notice 2 because it had not been shown to implicate
domestic infringement. Yandex challenged the adequacy of sample notice 3 on the ground that
in one instance the authorized copy and the alleged infringements were not the identical work.
The court rejected this, noting there is no express requirement in the statute that a DMCA notice
include an exact, authorized copy of an allegedly infringing work, or even any authorized copy
of such work. Nevertheless, the court ruled that the voluntary inclusion of an incorrect version
of the original work raised questions as to how the notice would have been understood by the
recipient, a factual question that the jury must resolve.^2888
Perfect 10 also sought partial summary judgment that the compliant sample notices
necessarily conferred actual knowledge of infringement for the purposes of its contributory
liability claim. The court rejected this, pointing to Ninth Circuit authority that a DMCA-
compliant notice provides only a claim of infringement, and is not necessarily sufficient by itself
to establish actual or red flag knowledge. There was therefore a genuine issue of material fact
regarding whether Yandex had actual knowledge of contributory infringement, and the court
denied Perfect 10 summary judgment on the point.^2889
Finally, the court granted Perfect 10 partial summary judgment that Yandex was
ineligible for the DMCA safe harbor during the period in which it had no registered DMCA
agent. The court rejected Yandex’s argument that Section 512(c)(2) does not require that its
agent be registered with the Copyright Office, only that it have an agent, on the ground that
Congress intended for the courts to enforce only substantial compliance with the DMCA’s safe
harbor requirements. The court noted that the phrase “substantially the following information”
in the statutory provision requiring registration of an agent modifies the ensuing subparagraphs
(^2887) Id. at 10-15.
(^2888) Id. at 15-17.
(^2889) Id. at *17-19.