Hendrickson v. eBay
Hendrickson v. eBay, 165 F. Supp. 2d 1082 (C.D. Cal. 2001)
Hendrickson alleged that eBay engaged in secondary copyright infringement when it "participated in and facilitated the unlawful sale and distribution of pirated copies of 'Manson' DVDs by providing an online forum, tools and services to the third party sellers," relying upon Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996). 165 F. Supp. 2d at 1087. eBay raised the DMCA safe harbor, Section 512, as a defense.
The court held that eBay did not have actual or constructive knowledge of the sale of infringing items where plaintiff’s notice failed to comply “substantially” with the DMCA notice requirements. Id. at 1089-92. Specifically, the notice was inadequate because it did not: (1) contain a written statement attesting under penalty of perjury to the good faith and accuracy of the infringement claim, or (2) identify adequately the allegedly infringing material. Id. The court described the standard as “actual or constructive knowledge that particular listings were being used by particular sellers to sell [a particular infringing work]”. Id. at 1093.
In addition, the Court rejected the argument that eBay had the "ability to control" due to its ability to remove infringing listings, holding that "the 'right and ability to control' the infringing activity, as the concept is used in the DMCA, cannot simply mean the ability of a service provider to remove or block access to materials posted on its website or stored in its system." Id. Such a interpretation "would defeat the purpose of the DMCA and render the statute internally inconsistent" because the "DMCA specifically requires a service provider to remove or block access to materials posted on its system when it receives notice of claimed infringement." Id.