The works of plaintiff were uploaded without authorization to the Photobucket service.  When plaintiff sent a DMCA-compliant notice, Photobucket removed the material.  Plaintiff apparently got tired of sending DMCA notices and sued Photobucket, arguing that h was not entitled to DMCA protection. It made a general ‘Photobucket should have known’ or “Photobucket should have taken pre-emptive steps” argument. Plaintiff argued that prior DMCA notices of specific infringement gave Photobucket actual notice of other infringements that were not the subject of DMCA notices.   After Viacom, one can guess how this will play out:  the  ISP will have  liability  only after actual knowledge of a specific infringement.

Prof  Goldman’s analysis of this decision is comprehensive.   I only want to bring to your specific attnetion the discussion on page 15 of the decision regarding ‘pre-infringement’ steps an ISP could take.  ”

Photobucket . . . does not maintain the right or ability to control what is posted, including material which infringe copyrights.  “The right and ability to control of infringing activity ‘as the concept is used in the DMCA, cannot simply mean the ability of a service provider to block or remove access to materials posted on its website or stored in its system [citations omitted].  Rather,  such a right and ability to control may take the form of prescreening content, providing extensive advise to users regarding content, and editing users content. [citations omitted].  Photobucket does not engage in such activities, and the size of its website curtails its ability to do so. . . Plaintiff has not pointed to any feasible method by which Photobucket can prescreen its content.

My reaction to that is, well,  eBay is pretty big, and it has pre-screening.

Comment:  After Tiffany and Viacom and cases like these, it will continue to be cheaper and more effective to place intermediaries on actual notice than to bring ‘constructive’ notice/they shoulda known’  litigations.  The more interesting lawsuits (to me) will be variants of the Akanoc fact pattern in both TM and copyright, where the intermediary is on actual knowledge of a specific infringement and for whatever reason, doesn’t promptly remove the material.

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