Web Host May Be Liable for Removing Only 1 of 3 Websites Operated by Its Customer–Hermeris v. Brandenburg

By Eric Goldman

Hermeris v. Brandenburg, 2:10-cv-02531-JAR -KMH (D. Kan. Jan. 23, 2011)

This is yet another web hosting copyright infringement case where the 17 USC 512 safe harbors aren’t discussed. (For other recent examples, see Rosen v. Hosting Services and Perfect 10 v. RapidShare). It’s not 100% clear why 512(c) didn’t come up. The defendant seeking dismissal, theplanet.com, appears to have designated a 512 agent. However, the case implies (but never expressly says) that theplanet didn’t properly honor the copyright owner’s takedown notice.

The plaintiff runs SimpleFilings.com, an online document preparation business. The alleged copyright infringer is IncomeInc.com, which runs at least three websites (all virtually identical to each other) that provide rival services to the plaintiff’s. Theplanet.com provides hosting services for all three websites. The opinion’s facts are garbled, and the court doesn’t say exactly what the alleged infringers copied from the plaintiff. More importantly, the plaintiff sent a copyright takedown notice to theplanet targeting only one of the three websites, and the opinion never makes clear what the notice said or what happened to the targeted website (the opinion implies that theplanet didn’t take it down). The plaintiff also complains that in response to the takedown notice, theplanet should have removed the other two similar websites as well, so its failure to do so constitutes direct and secondary copyright infringement. This ruling addresses theplanet’s motion to dismiss that latter allegation.

Fortunately, the court quickly rejects the direct infringement claim. The court says:

ThePlanet argues that merely hosting the websites does not rise to the level of copying, which is required to plead a cognizable claim for copyright infringement. The Court agrees…. liability is entirely premised on defendant’s participation as the host of the Brandenburg defendants’ websites.

A 512 discussion would have been helpful here. Whatever else 512 does, it should eliminate the claim that a web host is directly liable for a customer’s copyright infringement without a proper 512(c)(3) notice. Because the court doesn’t reference 512 at all, it appears the court is making a common law interpretation of direct infringement.

Things go less smoothly with the secondary copyright claims. Regarding contributory infringement, theplanet argues that it lacked the requisite knowledge of infringement. Because we don’t know if the plaintiff sent a 512(c)(3)-compliant notice, it’s hard to tell exactly what notice the plaintiff actually gave theplanet. The court says:

The Complaint alleges that plaintiff provided notice to ThePlanet of alleged direct infringement by the Brandenburg defendants with respect to plaintiff’s First Website. The Complaint further alleges that the Second and Third Websites are substantially similar to the First Website….[A]ssuming the facts alleged in the Complaint are true, ThePlanet had constructive knowledge of the direct infringement by the Brandenburg defendants based on plaintiff’s allegations that ThePlanet had actual knowledge of the direct infringement involving the First Website and that the Second and Third Websites are substantially similar to the First Website.

Holy non-sequitur, Batman! We’d need to see the exact notice, but knowing that there’s one instance of infringement on the site doesn’t automatically confer knowledge of all identical (let alone similar) infringements. Again, in the 512 context, we’ve seen this argument rejected many, many times where courts have required the plaintiffs to send takedown notices specifying each and every location of alleged infringement. See, e.g., Viacom v. YouTube and the many Perfect 10 cases. So if this plaintiff’s notice didn’t identify the second and third websites, under 512, the web host shouldn’t have any responsibility to root out those sites. As you can see, without the 512 backdrop, this court’s common law interpretation goes awry in a troubling way.

The court says theplanet may have materially contributed because it failed to act when it had the requisite knowledge. Again, the court imputes the knowledge of website #1 to spur the duty to take down websites #2 and #3.

On the vicarious infringement claim, the court appears to say (incorrectly IMO) that all web hosts have sufficient right and ability to supervise their customers’ activities, at least for purposes of the motion to dismiss.

This opinion raises way more questions than it answers. Perhaps subsequent rulings (if it gets that far) will clear up some of the mysteries.