Cameo Clips

Amazon.com was entitled to safe-harbor protection under Sec. 512 of the Digital Millenium Copyright Act (DMCA) in an infringement suit over the sale of a movie DVD through its Web site, the U.S. District Court for the Central District of California, Western Division, decided. Hendrickson v. Amazon.com Inc., 02-08443. Robert Hendrickson owns the copyright in the film “Manson.” He filed suit after he purchased a DVD copy of the film, which had not been officially released in that format, from an individual named Demetrious Papaioannou who had posted the DVD for sale on Amazon.com's Web site. To support his infringement claim against Amazon.com, Hendrickson produced what he described as “sales” documents and an e-mail he received from Amazon.com after his purchase. But granting summary judgment for Amazon.com, the district court noted: “These 'sales' documents are the Amazon Web site pages used by the seller and buyer to complete the purchase. The e-mail was an automatic notice sent to the seller after the purchase had been made notifying the seller that Amazon had charged the buyer's account and that the seller's account would be credited. Hendrickson has no viable evidence establishing that Amazon was not merely an Internet service provider, but rather was the direct seller of the infringing item. … Amazon meets the DMCA's definition of an ISP. Indeed, all of the evidence points to the fact that Papaioannou, not Amazon, was the actual seller.” Nine months before his purchase, Hendrickson had sent Amazon.com a letter stating that any sales of “Manson” DVDs were unauthorized. For purposes of safe-harbor protection, the district court noted that, “because the DMCA is relatively new, the question as to how long an adequate notice should remain viable is still unanswered.” The court then decided that Hendrickson's letter, “although adequate for the listings then on Amazon, cannot be deemed adequate notice for subsequent listings and sales, especially, as here, when the infringing item was posted for sale nine months after the date of the notice.” On the issue of vicarious infringement, though Amazon.com did receive a direct financial benefit from the sale, the district court had concluded, “While Amazon does provide transaction processing for credit card purchases, that additional service does not give Amazon control over the sale.”

Triable issues of material fact over whether American Online (AOL) met the threshold requirements for safe-harbor protection under the Digital Millennium Copyright Act (DMCA) precluded summary judgment for AOL in a suit by science-fiction author Harlan Ellison over the unauthorized peer-to-peer file sharing of his short stories on an online users group, the U.S. Court of Appeals for the Ninth Circuit decided. Ellison v. Robertson, 02-55797. Ellison stories had been posted on the USENET file-sharing network. The district court found no vicarious infringement by AOL. The trial court also ruled that while there were issues of material fact regarding whether AOL had committed contributory infringement, the online service was nevertheless entitled to summary judgment because it qualified for safe-harbor protection under the Online Copyright Infringement Liability Limitation Act, 17 U.S.C. Sec. 512, which is Title II of the DMCA. Noting that online contributory and vicarious infringement claims are determined under traditional copyright law, the appeals court affirmed the lower court's findings on these issues. The appeals court also affirmed a finding that AOL qualified for safe-harbor protection under Sec. 512(a) as “transitory digital network communications.” But reversing under Sec. 512(i), the appeals court decided, “It is difficult to conclude as a matter of law … that AOL had 'reasonably implemented' a policy against repeat infringers. There is ample evidence in the record that suggests that AOL did not have an effective notification procedure [for its subscribers] in place at the time the alleged infringing activities were taking place.”

Copyright/Internet Sales