Steadfast operates data centers. Imagebam is one of its customers. Imagebam offers image hosting services. Imagebam is said to have "become an unauthorized center for adult copyrighted material." ALS Scan, which holds many copyrights in pornographic works, has sent Steadfast DMCA deactivation notifications targeting images posted by Imagebam users. Steadfast forwarded the DMCA communications to Imagebam, which responded to them. My blog post on a previous District Court judgment.

The court does not specifically mention this, but ALS Scan tries to impose a tertiary liability on Steadfast. The main infringer is the uploading user. Imagebam is the secondary infringer. ALS Scan endeavors to hold Steadfast responsible for facilitating the direct injury to its users through Imagebam. This should be a bridge too far. Data centers typically offer their customers Internet access and physical space rental. Therefore, Steadfast should really be under heading 512 (a) rather than heading 512 (c), and 512 (a) does not have a notification and shutdown scheme at all. What if Steadfast does not have? It can turn Imagebam services on or off, but it cannot correct individual items in the Imagebam database. This exposes the issues underlying all pending copyright infringement lawsuits against IAP. Should they be obliged to treat their customers as "repeated" violators of the law on the basis of multiple unreviewed indications of suspected behavior? If that were the rule, Steadfast Imagebam should have thrown overboard a long time ago.

In an unpublished statement, the ninth circuit only deals with the legal standard for contributing copyright infringements (therefore the DMCA plays no role at all in this decision). According to Perfect 10 v. Amazon, summarized in Perfect 10 BC. Giganews, "a party can avoid liability for contributing copyright infringements if it takes" simple measures "to" prevent further damage to copyrighted works. " The court said Steadfast was "simple" measures "passed DMCA messages to Imagebam, and these measures prevented further harm since Imagebam apparently recognized everyone.

ALS Scan argued that Steadfast should have thrown Imagebam overboard due to the high volume of DMCA notifications. The court essentially says that Steadfast does not have the necessary copyright infringement scientist based on previous DMCA notices that have been recognized. The volume of previous DMCA notifications only gave Steadfast general knowledge of violent activities.

ALS Scan argued that the legal standard caught it in a beat-in-beat dynamic. The court says this is not a Steadfast problem due to the impact on tertiary liability:

Steadfast has not operated, controlled or managed any functions of It couldn't monitor, access, find, or delete Imagebam accounts. Due to a URL hyperlink contained in the notices of copyright infringement, it was not possible to determine where the infringing works or the Imagebam accounts responsible for illegal uploads were on the Flixya servers. Steadfast has taken what measures were available to prevent further damage to the copyrighted images from ALS)

(To be fair, if you're looking to upload people, the Whack-a-Mole issue isn't going to be improved – that's the Whack-a-Mole issue.)

A different judge argues that Steadfast's "simple" measures were not "effective" because violations continued. By analogy, the court points to the DMCA requirement for the termination of repeat offenders. The dissent concludes: “Where, as here, there are allegations that the extent and extent of previous violations have caused a defendant to know that such violations would continue tomorrow and the next day and the day after, I would make this claim to send the jury. "

This statement has some impact on lawsuits against IAPs for violating subscriber behavior. If past unsubscriptions do not provide specific knowledge of future violations, this appears to be at the heart of IAP's contributory breach liability. In addition, IAPs have no control over subscriber behavior (except for the on / off switch). If this opinion took precedence, I would say that this is a great asset for IAPs. Instead, I'm not sure how the Ninth Circuit will handle IAP cases.

Case quote: ALS Scan, Inc. v Steadfast Networks LLC, 2020 WL 4038050 (9th Cir. July 17, 2020)

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