Takedown Notice Sent to Parent Doesn’t Affect Subsidiary’s 512(c) Defense–Perfect 10 v. Amazon

By Eric Goldman

Perfect 10, Inc. v. Amazon.com, Inc., 2009 WL 1334364 (C.D. Cal. May 12, 2009)

This long-running case is working its way through the district court after the Ninth Circuit’s 2007 remand. See my previous blog posts about the May 2007, December 2007 and post-remand July 2008 rulings.

Last week’s ruling involves A9, Amazon’s search subsidiary, that Perfect 10 sued for republishing allegedly infringing Google syndicated search results. Starting in 2004, Perfect 10 sent at least 8 takedown demands to A9’s parent, Amazon, with the apparent intent that the takedowns apply to both Amazon and A9. However, Perfect 10 never actually sent a proper takedown notice to A9 until November 2008–well after its complaint was filed.

Judge Matz gives Perfect 10 no benefit of the doubt. Instead, the judge grants summary judgment to A9 based on the 512(c) safe harbor because Perfect 10 could not show that A9 knew of the copyright infringement (thus, Perfect 10’s contributory copyright infringement claim failed; the other copyright claims had already been dismissed). The judge takes a formalistic approach (appropriately so, IMO) to 512(c)(3) takedown notices, concluding that:

1) The 512(c)(3) notices sent to the parent Amazon did not confer knowledge to the subsidiary A9.

2) The November 2008 notice sent to A9 are too late to support the allegations in the already filed complaint. Presumably, the November 2008 notice could now support a new complaint, but only if A9 hasn’t expeditiously responded to it.

3) Amazon was not A9’s agent for notice. This is complicated because Amazon’s site disclosures could have been clearer about the Amazon-A9 relationship. However, A9 had its own 512 designation of an agent for service of process on file with the Copyright Office, and a search of the Copyright Office website would quickly reveal this. This is a good practice pointer for copyright owners: you need to research the 512 filings of every website you are targeting with 512(c)(3) notices. The search is free and super-simple, and a failure to communicate with the website’s designated agent can kill a copyright claim when the website invokes the 512(c) defense. This is also a good reminder to websites seeking a 512(c) defense: if you plan to rely on the formalities, make sure your 512 designations are up-to-date and error-free!

4) Even if Amazon hosted the A9 website, it had no responsibility to communicate Perfect 10’s 512(c)(3) notices to A9.

5) A9’s designation of a web form for complaints, rather than the statutorily required email address, was an immaterial deviation from the statute.

I’m always amazed when copyright owners flub the fairly simple requirements of 512(c)(3). The statutory requirements are so easy to comply with! These omissions are especially perplexing in Perfect 10’s case given that they’ve gone on a litigation frenzy and spent hundreds of thousands of dollars (probably millions) relying on mishandled facts. A little more care and investment upfront could have prevented an avoidable loss like this.

UPDATE: Plagiarism Today explores the meaning of this ruling.

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