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Perfect 10, Inc. v.

May 12, 2009


The opinion of the court was delivered by: The Honorable A. Howard Matz, U.S. District Judge


Proceedings: IN CHAMBERS (No Proceedings Held)



On October 27, 2008, the Court granted summary judgment in favor of Defendant, Inc. on Plaintiff Perfect 10, Inc.'s claims of direct copyright infringement and vicarious copyright infringement. On November 4, 2008, the Court denied summary judgment as to A9's defense under 17 U.S.C. § 512(a). In the latter order, the Court held that although A9 did have a repeat infringer policy that satisfies § 512(i), it had no occasion to determine whether A9 actually terminated repeat infringers, because Perfect 10 had not shown that A9 had knowledge of infringement. Order, Nov. 4, 2008 at 5, 7-8. In doing so, the Court relied on the fact that Perfect 10 had not sent any copyright notices to A9, but rather had sent them to A9's parent company,, Inc. See Order, Nov. 4, 2008 at 8.

A9 now moves for summary judgment on the remaining claim against it, contributory infringement, on the ground that it is entitled to a safe harbor under 17 U.S.C. § 512(c) because it is undisputed that Perfect 10 sent its notices to Amazon, instead of to A9. Perfect 10 opposes the motion, making four arguments. First, Perfect 10 contends, contrary to what this Court found on November 4, 2008, A9 did have actual knowledge of infringement, thus disqualifying it from the § 512(c) safe harbor. Id. § 512(c)(1)(A)(i)). Second, Perfect 10 argues, A9 is equitably estopped from asserting that Perfect 10 improperly sent its notices to Amazon, because it held itself out as an company and failed to comply with 17 U.S.C. § 512(c)(2) and because Amazon made representations that led Perfect 10 to believe that it was able to handle copyright notices on A9's behalf. Third, Perfect 10 points to the notices that it sent directly to A9 in November 2008 as proof of A9's knowledge, after the Court had already found that Perfect 10 had sent its notices to the wrong recipient.

Although Perfect 10 has provided some evidence that it had not provided in the previous motion, its evidence is not sufficient to establish a genuine dispute that A9 had "actual knowledge that specific infringing material [was] available using its system." Perfect 10, Inc. v., Inc., 508 F.3d 1146, 1172 (9th Cir. 2007). Nor has Perfect 10 submitted evidence of actions by A9 that could be the basis to apply equitable estoppel against A9. Thus, the Court GRANTS A9's motion for summary judgment on the claim of contributory infringement.*fn1


A. A9's and Amazon's Designated Copyright Agents

A9 is a wholly-owned subsidiary of Amazon. A9's website, , was launched to the public in September 2004. It offers users search results from numerous information sources. Declaration of Jonathan Leblang ("Leblang Decl."), Aug. 22, 2005, ¶¶ 2-3 (attached as Ex. 3 to Declaration of Anthony J. Malutta).

A9's Conditions of Use, and within that a Notice and Procedure for Making Claims of Copyright Infringement, were published on its website from its inception. Leblang Decl. ¶ 4, Ex. A, p. 14 (showing that A9's Conditions of Use was updated "26 February 2004"). There is a link to the Conditions of Use on the bottom of every page on the A9 website. See Zada Decl., Ex. 9. The Notice and Procedure for Making Claims of Copyright Infringement instructed users that A9's Copyright Agent for notice of claims of copyright infringement could be reached at an address and telephone number in Palo Alto, California or by clicking on a link that takes the user to an online complaint form. Malutta Decl., Ex. 3 at 42; Declaration of Norman Zada ("Zada Decl.") ¶ 7. In June 2004, A9 filed a designation of agent with the U.S. Copyright Office, indicating the same address and telephone number, as well as a fax number and the name of the designated agent, Jonathan Leblang. The Copyright Office designation also included, in lieu of an email address for the agent, the URL for the aforementioned online complaint form. Zada Decl, Ex. 5 at 1.

Meanwhile, on Amazon's website, Amazon's Notice and Procedure for Making Claims of Copyright Infringement instructed users to contact Amazon's copyright agent in Seattle, Washington "for notifying and its affiliates that your copyrighted material has been infringed." Malutta Decl., Ex. 2 at 22 (emphasis added). Amazon's Conditions of Use referred repeatedly to Amazon's "affiliates" and "subsidiaries," but did not identify the entities that were those affiliates or subsidiaries. Malutta Decl., Ex. 2 at 16-23. The designation that Amazon filed with the Copyright Office did not expressly define "affiliates," but did list as "alternative names of service provider" a number of Amazon-owned entities, such as,, and Zada Decl., Ex. 1 at 2. Because A9 was not among the listed entities, Amazon's copyright agent was not designated to receive notices on behalf of A9.

B. Dr. Zada's DMCA Notices

On or about November 15, 2004, Perfect 10's President, Dr. Zada, sent his first DMCA notice to Amazon's copyright agent concerning alleged infringements in the search results of A9's search engine (Declaration of Karen Ressmeyer, Aug. 18, 2005, ¶ 5 (attached as Ex. 2 to Malutta Decl.). Dr. Zada states that he sent his first notice to Amazon because he "first found out about Amazon's involvement in the infringement of Perfect 10's copyrights by doing searches using a search box [labeled A9 Web Search] on the website." Zada Decl. ¶ 3, Ex. 1, p. 1. He believed that Amazon was responsible because users were getting A9 search results by going to the website. Moreover, on almost every page of A9's website was a logo stating "An company." Id. Thus, Dr. Zada sent a letter on or about November 15, 2004 to Amazon, complaining that infringing third-party websites appeared in the results of searches done through the A9 search box. Ressmeyer Decl. ¶ 5.

Although Dr. Zada states that he did go onto A9's website and found allegedly infringing search results on it, Zada Decl. ΒΆ 3, he is silent on whether he saw or clicked on the Conditions of Use link displayed on the bottom of each page, not far from the "" logo. See id., Ex. 9 ...

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