1090 351 federal supplement, 2d series · corbis corp. v. amazon.com, inc. 1093 cite as 351...

1090 351 FEDERAL SUPPLEMENT, 2d SERIES

sider] status, as a means of fully effectingan overarching, value-adding corporateevent (e.g., a merger),’’ there is ‘‘a dimin-ished risk that the securities [acquisitions]are not motivated by a legitimate corpo-rate purpose.’’ See Gryl, 298 F.3d at 142.TRS, for example, had ‘‘no discretion uni-laterally to alter in [its] favor the amount,price, [and] timing’’ of its acquisition ofInfoSpace shares. See id. at 142–43. Ac-cordingly, the Court declines plaintiff’s in-vitation to declare Rule 16b–3(d), as inter-preted by the SEC, invalid. The Courtconcludes that Rule 16b–3(d)(1) exemptsTRS’s acquisition of InfoSpace stock fromSection 16(b) liability because TRS, an in-sider, acquired InfoSpace stock directlyfrom the issuer with the approval of theissuer’s board of directors.CONCLUSION

The Court GRANTS Defendant Ameri-can Express Travel Related Services Com-pany’s motion to dismiss the amendedcomplaint, docket no. 13.

IT IS SO ORDERED.

,

CORBIS CORPORATION, aWashington corporation,

Plaintiff,

v.

AMAZON.COM, INC., a Delawarecorporation, et al.,

Defendants.

No. CV03–1415L.

United States District Court,W.D. Washington,

at Seattle.

Dec. 21, 2004.Background: Copyright holder broughtaction against Internet service provider,claiming that service provider directly and

vicariously infringed its copyright inter-ests, and engaged in unfair competition bypublishing copyrighted photos on its thirdparty vendor platform. Service providerAmazon filed a counterclaim for declarato-ry relief. The parties then filed cross mo-tions for summary judgment and partialsummary judgment.

Holdings: The District Court, Lasnik,Chief Judge, held that:

(1) Digital Millennium Copyright Act(DMCA) protected service providerfrom copyright liability for 230 imagesdisplayed by vendors;

(2) pending registrations did not conferfederal jurisdiction over copyrightclaims;

(3) partial summary judgment in favor ofprovider was precluded on claimsbrought against it for direct copyrightinfringement and actual damages forinfringement;

(4) copyright holder could not maintainimplied reverse passing off claim underLanham Act since that claim over-lapped with its copyright claims andthe copyright laws provided an ade-quate remedy; and

(5) Communications Decency Act (CDA)barred state law claims against Inter-net service provider for publishing con-tent provided primarily by third partyvendors.

Motions granted in part and denied inpart.

1. Copyrights and Intellectual PropertyO67.3

Company which operated Internetweb sites, provided retail and third partyselling services to Internet users, andmaintained computers to govern access toits web sites was a ‘‘service provider’’ with-in meaning of Digital Millennium Copy-

1091CORBIS CORP. v. AMAZON.COM, INC.Cite as 351 F.Supp.2d 1090 (W.D.Wash. 2004)

right Act (DMCA). 17 U.S.C.A.§ 512(k)(1)(B).

See publication Words and Phras-es for other judicial constructionsand definitions.

2. Copyrights and Intellectual PropertyO75

For purposes of determining whetherInternet service provider was entitled toprotection from copyright liability underDigital Millennium Copyright Act(DMCA), service provider satisfied re-quirement that it adopt a policy that pro-vides for the termination of service accessfor repeat copyright infringers in appropri-ate circumstances; service provider re-quired each vendor to accept a partic-ipation agreement that set forth guidelinesfor the use of its third party vendor plat-form, and participation agreement prohib-ited the listing, linking, or posting of anymaterial that violated copyright laws, andmade it clear that those who violated ser-vice provider’s policies could face a varietyof penalties. 17 U.S.C.A. § 512(i).


By informing users that, in appropri-ate circumstances, it could terminate theuser’s accounts for repeated copyright in-fringement, Internet service provider suffi-ciently communicated its termination poli-cy to its users as required in order to beeligible for protection from copyright lia-bility under Digital Millennium CopyrightAct (DMCA). 17 U.S.C.A. § 512(i).


Internet service provider reasonablyimplemented its infringement policy as re-quired in order to be eligible for protectionfrom copyright liability under Digital Mil-lennium Copyright Act (DMCA); serviceprovider adopted a procedure for receivingcomplaints and conveying those complaintsto users and there was no evidence that

service provider tolerated blatant, repeatinfringement. 17 U.S.C.A. § 512(i).


Internet service provider, which mere-ly provided the forum for independentthird party vendors to list and sell theirmerchandise, satisfied all of the require-ments for copyright protection under safeharbor provision of Digital MillenniumCopyright Act (DMCA); copyright holder,which never attempted to notify serviceprovider that vendors were selling imagesthat violated its copyrights, failed to showeither service provider’s actual knowledgeor its apparent knowledge of infringingmaterial on its third party vendor plat-form, and service provider did not have theright and ability to control the infringingmaterial. 17 U.S.C.A. § 512(c) .


Notices of infringement must substan-tially comply with the Digital MillenniumCopyright Act’s (DMCA) notice require-ments to be considered evidence of a ser-vice provider’s knowledge. 17 U.S.C.A.§ 512(c)(3)(B)(i).

7. Copyrights and Intellectual PropertyO75.5

District court does not have subjectmatter jurisdiction over an infringementclaim until the Copyright Office grants theregistration application and issues a certif-icate of registration; pending registrationdoes not confer federal jurisdiction over acopyright claim. 17 U.S.C.A. § 411(a).


To prove direct copyright infringe-ment, a plaintiff must demonstrate that (1)it owns a valid copyright, and (2) defen-dant violated one or more of plaintiff’s


exclusive rights under the Copyright Act.17 U.S.C.A. § 101 et seq.

9. Copyrights and Intellectual PropertyO83(3.5)

Existence of a certificate of registra-tion from the United States Copyright Of-fice is prima facie evidence of a valid copy-right. 17 U.S.C.A. § 410(c).


Recipient of rights transferred by thecontract may sue under Copyright Act forinfringement of those rights. 17 U.S.C.A.§ 106.

11. Copyrights and Intellectual PropertyO89(2)

Genuine issues of material fact existedas to whether registration certificates cov-ered a particular photo, whether one regis-tration certificate was invalid because theenhanced image lacked sufficient originali-ty and would negatively impact the origi-nal copyrighted image, and whether copy-right holder’s measure of actual damageswas too speculative, precluding partialsummary judgment in favor of Internetwebsite operator on claims brought againstit for direct copyright infringement andactual damages for infringement.

12. Trade Regulation O404For purposes of Lanham Act, ‘‘re-

verse passing off’’ occurs when someonemarkets a product as her own, eventhough someone else created the product;it can occur either expressly, when thewrongdoer removes the trademark of an-other and sells that product under a namechosen by the wrongdoer, or impliedly,when the wrongdoer simply removes orotherwise obliterates the name of the man-ufacturer or source and sells the productin an unbranded state. Lanham Trade-Mark Act, § 43(a), 15 U.S.C.A. § 1125(a).

See publication Words and Phras-es for other judicial constructionsand definitions.

13. Trade Regulation O404

Copyright holder could not maintainimplied reverse passing off claim underLanham Act since that claim, which wasbased on allegations that website hostcommitted reverse passing off by display-ing its copyrighted images on websitewithout crediting copyright holder or itsphotographers for those images, and in-stead misrepresented that the imagescame from other sources, overlapped withits copyright claims and the copyright lawsprovided an adequate remedy. LanhamTrade-Mark Act, § 43(a), 15 U.S.C.A.§ 1125(a).

14. Trade Regulation O404

To be a cognizable violation of theLanham Act, reverse passing off must al-ways include bodily appropriation. Lan-ham Trade-Mark Act, § 43(a), 15 U.S.C.A.§ 1125(a).

15. Telecommunications O461.15

Communications Decency Act (CDA)barred state law claims against Internetservice provider for publishing contentprovided primarily by third party vendors.Communications Act of 1934, § 230, asamended, 47 U.S.C.A. § 230.

Brett Wade Sommermeyer, Gordon &Polscer LLP, Seattle, WA, Dan J. Donlan,Mary K. Schug, Richard Carl Siefert, Wil-liam Mickel Krause,Claire L. Keeley, LanePowell Spears Lubersky, Seattle, WA, forPlaintiffs.

Charles Christian Sipos, Elizabeth L.McDougall–Tural, Breena Michelle Roos,Perkins Coie, Dale L. Kingman, David Jo-seph Corey, John Clark Gibson, KingmanPeabody Pierson & Fitzharris, Seattle,WA, Kenneth B. Wilson, Perkins Coie, SanFrancisco, CA, for Defendants.


ORDER REGARDING SUMMARYJUDGMENT MOTIONS

LASNIK, Chief Judge.

I. INTRODUCTIONThis matter comes before the Court on

cross motions for summary judgment andpartial summary judgment filed by plain-tiff, Corbis Corporation (‘‘Corbis’’) and de-fendant, Amazon.com, Inc. (‘‘Amazon’’).For the reasons set forth in this Order, theCourt finds that Amazon is protected fromliability for copyright infringement occur-ring on its third party vendor platform,zShops.com. In addition, the Court findsthat it lacks subject matter jurisdictionover infringement claims regarding photo-graphs for which Corbis has not obtainedcopyright registration. Finally, the Courtfinds that Corbis’s federal antitrust andstate law claims fail as a matter of law.

In accord with these findings, the Court:

1. Grants Amazon’s Motion for Sum-mary Judgment Under the Digital Millen-nium Copyright Act (Dkt. # 132) (‘‘Def.’sDMCA Mot.’’);

2. Denies Corbis’s Motion for PartialSummary Judgment Regarding § 512(c)‘‘Safe Harbor’’ Qualification under theDMCA (Dkt. # 145) (‘‘Pl.’s 512(c) Mot.’’);

3. Denies Corbis’s Motion for PartialSummary Judgment Against Amazon Pre-cluding Application of DMCA for Lack ofCompliance with 17 U.S.C. § 512(i) (Dkt.# 146) (‘‘Pl.’s § 512(i) Mot.’’);

4. Grants Corbis’s Motion for PartialSummary Judgment Against Amazon as toDMCA Eligibility for Its IMDb Platform(Dkt. # 144) (‘‘Pl.’s IMDb Mot.’’);

5. Grants Amazon’s Motion for PartialSummary Judgment on Lack of CopyrightRegistration (Dkt. # 153) (‘‘Def.’s Copy-right Reg. Mot.’’);

6. Grants Amazon’s Motion for PartialSummary Judgment Denying Corbis’s Di-rect Copyright Infringement Claims (Dkt.

# 151) (‘‘Def.’s Direct Copyright Inf.Mot.’’);

7. Denies Corbis’s Motion for PartialSummary Judgment Against Amazon forDirect and Vicarious Copyright Liability(Dkt. # 147) (‘‘Pl.’s Copyright Infr. Mot.’’);

8. Grants Amazon’s Motion for PartialSummary Judgment on Plaintiff’s Trade-mark and State Law Claims (Dkt. # 132)(‘‘Def.’s Trademark and State Law Mot.’’);

9. Denies Amazon’s Motion for PartialSummary Judgment on Copyright andCopyright Misuse (Dkt. # 151) (‘‘Def.’sMot. for Partial Summ. J. on Copyrightsand Copyright Misuse’’);

10. Denies Amazon’s Motion for PartialSummary Judgment on Plaintiff’s ActualDamages (Dkt. # 163); and

11. Grants Amazon’s Motion for PartialSummary Judgment on Plaintiff’s Claimand Damages for Tortious Interferencewith Business Relationships (Dkt. # 105).

At the end of the day, Corbis is left withtwo remaining claims of direct copyrightinfringement against Amazon based on al-legations that Amazon displayed on itsIMDb.com website a photograph of ErikaChristensen in which Corbis claims copy-right interests under Copyright Registra-tion Nos. VA 1–181–966 and VA 1–207–124.

II. BACKGROUND

A. Procedural Background.

On June 30, 2003, Corbis filed suitagainst Amazon and 15 other defendants(the ‘‘vendor defendants’’). Corbis allegesit holds copyright interests in two photo-graphs that Amazon placed on the websiteIMDb.com and in hundreds of photographsthat were being sold by the vendor defen-dants on Amazon’s website. Because Cor-bis did not grant permission to use thephotos, it claims that Amazon directly and


vicariously infringed Corbis’s copyright in-terests in violation of 17 U.S.C. §§ 106 &501 (the ‘‘Copyright Act’’), engaged in un-fair competition in violation of 15 U.S.C.§ 1125(a) (the ‘‘Lanham Act’’) and R.C.W.19.86.020 et seq. (the ‘‘Consumer Protec-tion Act’’), diluted Corbis’s trademarks inviolation of 15 U.S.C. § 1125(c) (the‘‘Trademark Act’’), and tortiously inter-fered with Corbis’s business relations.

As of September, 2004, Corbis hadreached a resolution with each of the ven-dor defendants, leaving Amazon as the soleremaining defendant. Amazon, for itspart, denies the allegations and asserts, asan affirmative defense, that it is immunefrom liability for copyright infringementunder Title II of the Digital MillenniumCopyright Act (‘‘DMCA’’), 15 U.S.C. § 512,et seq. In addition, Amazon has filed acounterclaim for declaratory relief.

B. Factual Background.

1. Amazon’s zShops Platform.

Amazon is a company specializing inelectronic commerce. It is most widelyknown for selling books over the Internetat its website, Amazon.com. The Ama-zon.com website also hosts several thirdparty vendor platforms, including a plat-form entitled ‘‘zShops.’’ 1 Amazonlaunched the zShops platform in the fall of1995. The zShops platform allows individ-uals and retailers (referred to as ‘‘ven-dors’’) to showcase their products and sellthem directly to online consumers. Ama-zon, however, does not sell any of its owninventory on the zShops platform.

To sell on zShops, a vendor creates aweb page on the zShops platform thatincludes information regarding the product

being sold. These web pages are referredto as ‘‘listings,’’ and are created by usingtools and forms provided by Amazon. Theforms allow the vendor to describe theproduct, list the price, and provide an im-age of the product. A vendor can includea product image in the listing in one of twoways. The vendor either creates a link toan image stored on the vendor’s computeror server, or uploads an image to one ofAmazon.com’s servers for display in thelisting. Amazon does not actively partici-pate or supervise the uploading or linkingof images, nor does Amazon preview theimages before the link is created or theupload completed.

Although vendors may accept any vari-ety of payment for their products, if buy-ers pay by credit, Amazon requires ven-dors to use its services for processingcredit card transactions. Amazon de-scribes its credit card processing serviceas merely facilitating the monetary ex-change between the online buyer and ven-dor and asserts that it does not conductthe sale of the products offered by thevendors. If the product is paid for byother means, Amazon has no involvementin the transaction.

Vendors must register with Amazon be-fore they list items on zShops. Amazoncharges a fee of $39.99 to all vendors,which allows a vendor to use the zShopsplatform and Amazon’s credit card pro-cessing services. Vendors also pay Ama-zon a percentage of the price of any prod-ucts sold. The percentage ranges from2.5% to 5%, depending on the price of theitem.

1. Amazon hosts two other third party vendorplatforms at the Amazon.com website. The‘‘Marketplace’’ platform allows vendors to sellnew, used, or collectible versions of itemsalready sold by Amazon. The ‘‘Auctions’’platform allows vendors to sell items through

an online bidding process. Corbis’s allega-tions focus on the zShops platform. Corbisdoes not allege that its copyrights have beenviolated by the selling of items on Auctions orMarketplace.


As part of the registration, vendorsmust also enter into a Participation Agree-ment, which states that all vendors arebound by its terms as well as the terms setforth in all policies and guidelines for thezShops site. The Participation Agreementprohibits vendors from listing or linking toany item that

(a) infringes any third-party intellectualproperty rights (including copyrights,trademark, patent, and trade secrets) orother proprietary rights (includingrights of publicity or privacy); TTT; or(c) is counterfeited, illegal, stolen, orfraudulent.

Dkt. # 134, Decl. of Eric Orpet in Supp. ofDef.’s Mots. for Summ. J. (‘‘Orpet Decl.’’)at ¶ 29.

In addition, vendors are required toabide by the ‘‘Community Rules’’ set forthin the ‘‘Help Section’’ of the Amazon.comsite. The Community Rules state that:

Copies, dubs, duplicates, or transfers ofbooks, music, videos, television pro-grams, radio programs, concerts, DVDs,software, etc., are prohibited. Recopiedmedia infringe upon copyrights andtrademarks and are illegal to sell. Justas you cannot sell a photocopied bookwithout the author’s permission, youcannot sell copies or duplicates of videos,music, video games, software, photos, orany copyrighted material without per-mission of the copyright holder.

Id. at 39a. The Community Rules alsomake reference to, and state that they areincorporated in, the Participation Agree-ment. See id. at 38.

In more than one section of the Partic-ipation Agreement, Amazon asserts theright to remove listings and terminate ser-vices for violations of either the Partic-ipation Agreement or Amazon’s policies.For example, the Participation Agreementstates that:

Amazon.com has the right, but not theobligation, to monitor any activity and

content associated with this site. Ama-zon.com may investigate any reportedviolation of its policies or complaints andtake any action that it deems appropri-ate, Such action may include, but is notlimited to, issuing warnings, suspensionor termination of service, denying ac-cess, and/or removal of any materials onthe [Amazon.com site], including listingsand bids. Amazon.com reserves theright and has absolute discretion to re-move, screen, or edit any content thatviolates these provisions or is otherwiseobjectionable.

Id. at ¶¶ 20–21, p. 34. The ParticipationAgreement contains a blanket reservationof Amazon’s right, ‘‘in its sole discretionTTT to terminate this Participation Agree-ment, access to the [Amazon.com site] orthe [auction or selling services], or anycurrent auctions or fixed price sales imme-diately without notice for any reason.’’ Id.at ¶ 22, p. 36.

Amazon has established a designatedagent responsible for receiving claims ofinfringement of intellectual propertyrights. See id. at ¶ 24. Contact informa-tion for the agent has been provided to theCopyright Office and is available on Ama-zon’s website, including on the zShops plat-form.

When Amazon receives information thata vendor may be infringing another’s copy-rights, Amazon’s practice is to cancel theallegedly infringing listing and send an e-mail to the vendor. The e-mail notifies thevendor of the cancellation, identifies a con-tact e-mail address for the complainingparty, and reminds the vendor that ‘‘re-peated violations of our Community Rulescould result in permanent suspension fromour Auction, zShops, and Amazon Market-place sites.’’ Id. at ¶ 25; Dkt. # 148, Decl.of Claire L. Keeley in Supp. of Pl.’s Mots.for Summ. J. (‘‘Keeley Decl.’’), at 173.

The zShops platform contains approxi-mately 40 million listings of items for sale.


From October 2003 to March 2004, Ama-zon cancelled over one million listings onits zShops and Auctions platforms for vio-lations of the Participation Agreement.See Orpet Decl. at ¶ 26. During that sameperiod, Amazon terminated almost 1,000vendors for repeat or egregious violationsof the Participation Agreement or Commu-nity Rules. See id. at ¶ 26.

When Amazon first launched zShops in1999, it contacted some vendors to invitethem to list products on the platform.Two of these vendors, Ricks Movie Graph-ics and Pix Posters, Inc., were invited tosell their collections of movie posters onzShops. Amazon did not ask whetherthese companies also sold celebrity por-traits. A representative from Ricks MovieGraphics stated that during one of theseconversations he told Amazon that RicksMovie Graphics did not own the copyrightsto any of the movie posters it sold but thathe believed Ricks Movie Graphics had theright to sell everything in its inventory.See Keeley Decl. at 46–47. Ricks MovieGraphics and Pix Posters, Inc. were namedas vendor defendants in this suit. Othervendor defendants assert that they werenever contacted by Amazon regardingopening a zShops site.

2. The IMDb.com Website.

Amazon also owns and operates the In-ternet Movie Database (IMDb), a websitelocated at www.IMDb.com. IMDb is aninformation database regarding movies, ac-tors, and entertainment in general. Ama-zon acquired IMDb in the late 1990s. Al-though the IMDb site is independent fromthe Amazon.com site and its third partyselling platforms, IMDb contains links toitems available on the Amazon.com site.

For instance, IMDb contained a banneradvertisement with celebrity photos includ-ing two photos in which Corbis claims acopyright interest. IMDb users whoclicked on the banner were linked tozShops and provided with information re-garding vendors selling celebrity images.

3. Corbis Images on zShops andIMDb.com.

Corbis is in the business of licensing artimages and photographs, including photo-graphs of celebrities. As part of its busi-ness, Corbis enters into contracts withphotographers who take celebrity photos.Under these contracts, Corbis representsand distributes a photographer’s work and,in exchange, is paid a royalty based on thefees charged for licensing the photos.Corbis also owns exclusive rights to anumber of individual photographs and pho-tographic collections.

Corbis maintains a copyright registra-tion program for itself and the photogra-phers it represents. Corbis receives ap-proximately 100,000 images a year fromphotographers for review and syndication.If the photographs are not already in digi-tal format, Corbis converts each of theminto a digital image. For some of theimages, Corbis employees will add ‘‘meta-data’’ to the digital image, such as keywords describing the image, photographer,and subject. Corbis employees will alsoadd visual enhancements to the image.Every week, Corbis places the images ithas received on a computer generated CD–ROM. At regular intervals, Corbis willprepare a copyright application for thegroup of images on the CD–ROM. Itsubmits the CD–ROMs as a deposit withthese bulk applications.2

2. At times, Corbis will register an image or agroup of images on behalf of a photographer.This process will occur in much the samefashion as the bulk registration describedabove. In addition, some of the photogra-

phers represented by Corbis file their owncopyright registrations. In those instances, itis Corbis’s practice to obtain a copy of theregistration from the photographer.


Corbis has identified a total of 232 im-ages (the ‘‘Corbis Images’’) in which itclaims a copyright interest. Two of theimages appeared on the IMDb website.The remaining 230 images have been cop-ied, displayed, and sold by vendor defen-dants through their zShops sites.3

When, in February 2003, Corbis firstlearned that its images were appearing onzShops, it did not tell Amazon or any ofthe zShops vendors that displaying andselling the Corbis Images infringed Cor-bis’s copyright interests. Corbis first pro-vided Amazon and the zShops vendorswith notice of infringement when Corbisfiled and served the Complaint in June,2003.

Upon receiving the Complaint, Amazonterminated the identified accounts of all ofthe vendor defendants listed in the Com-plaint and removed the allegedly infringingimages on IMDb. Since its account wasterminated, one of the vendor defendants,Posternow, GmbH (also d/b/a Faust Mul-timedia) (‘‘Posternow’’), has opened atleast two different vendor accounts withzShops under slightly different names.These accounts were terminated by Ama-zon once Amazon was made aware of thetheir existence.

III. DISCUSSIONThis Section is broken into four subsec-

tions. Subsection A addresses whetherthe DMCA protects Amazon from copy-right liability for the 230 Corbis imagesdisplayed by the vendor defendants. Sub-

section B addresses whether this Courthas subject matter jurisdiction over copy-right infringement claims if the photo-graph in question has not been registeredby the Register of Copyrights, SubsectionC addresses Corbis’s motion for summaryjudgment with regard to direct copyrightinfringement of photographs on IMDb.Subsection D addresses Corbis’s LanhamAct and state law claims.

In reaching its conclusions, the Courthas been mindful that summary judgmentis proper only if ‘‘the pleadings, deposi-tions, answers to interrogatories, and ad-missions on file, together with the affida-vits, if any, show that there is no genuineissue as to any material fact and that themoving party is entitled to judgment as amatter of law.’’ Fed.R.Civ.P. 56(c).When, as here, parties submit cross-mo-tions for summary judgment, this Courtmust review the evidence submitted insupport of each cross-motion and considereach party’s motions on their own merits.See Fair Housing Council of RiversideCounty, Inc. v. Riverside Two, 249 F.3d1132, 1136 (9th Cir.2001). This Courtmust examine each set of evidence in thelight most favorable to the non-movingparty. See U.S. v. Diebold, Inc., 369 U.S.654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176(1962).

A. Amazon’s Protection from Copy-right Liability Under the DMCA.

Corbis alleges that Amazon infringed itscopyrights in 230 Corbis Images that were

3. There are three types of copyright interestsat issue. First, Corbis asserts the copyrightinterests of the photographers who took thephotos. See Def.’s Mot. for Partial Summ. J.on Copyrights and Copyright Misuse, at 4–5.Second, Corbis asserts a derivative copyrightinterest in all images to which it has addeddigital enhancements, metadata, or keywords.See id. Third, Corbis contends that the bulkCD–ROM filings submitted to the CopyrightOffice contain a unique compilation of the

photographs, and asserts a copyright interestin those compilations. See id. Of the 232images, 49 are subject only to Corbis’s deriva-tive and compilation copyright interests. Seeid. at 2. 102 images are subject only to thephotographers’ copyright interests that arebeing pursued by Corbis. See id. The re-maining 81 images are subject to both Cor-bis’s and the photographers’ copyright inter-ests. See id.


displayed by the zShops vendors. Amazonhas asserted that the DMCA protects itfrom liability for these alleged copyrightviolations. Although it may seem prema-ture to address Amazon’s DMCA defensebefore first determining whether Amazonhas violated Corbis’s copyrights in the 230zShops images, such an approach makessense under the circumstances. TheDMCA gives an Internet service provider(‘‘ISP’’) extensive protection against liabili-ty, and leaves copyright owners with onlylimited injunctive relief. As discussedmore fully below, the Court finds thatAmazon is protected from damages soughtby Corbis for the alleged infringement ofits copyrights in the images displayed byzShops vendors. The relief sought byCorbis for the alleged infringements isprohibited under the DMCA. As a result,even if Corbis’s copyright infringementclaims can bare fruit, Amazon’s liabilityprotection ensures that the claims willwhither on the vine.

1. Overview of the DMCA

In 1998, Congress enacted the DMCA inan effort to resolve the unique copyrightenforcement problems caused by the wide-spread use of the Internet. See Ellison v.Robertson, 357 F.3d 1072, 1076 (9th Cir.2004); In re Aimster Copyright Litiga-tion, 334 F.3d 643, 655 (7th Cir.2003);DMCA, Pub.L. No. 105–304, 112 Stat. 2860(1998). Tackling copyright infringementon the Internet required balancing thecompeting interests of several groups.The first set of competing interests in-cludes those of copyright holders and endusers. The DMCA ‘‘intended to ‘balancethe need for rapid response to potentialinfringement with the end-users [sic] legit-imate interests in not having material re-moved without recourse.’ ’’ Rossi v. Mo-tion Picture Assoc. of America, 391 F.3d1000, 1003 (9th Cir.2004) (quoting S.Rep.No. 105–190, at 21 (1998) (alterations inoriginal)). The second set of competing

interests were those of copyright holdersand ISPs whose services may be used toinfringe copyrights. The DMCA intendedto balance the interests of these parties bycreating a mechanism for rights holders toinform ISPs of potentially infringing con-duct while, at the same time, providing‘‘greater certainty to service providers con-cerning their legal exposure for infringe-ments that may occur in the course oftheir activities.’’ Ellison, 357 F.3d at 1076(quoting S.Rep. No. 105–190, at 20 (1998);H.R.Rep. No. 105–551, pt. 2, at 49 (1998)).

This balancing effort resulted in a stat-ute that creates ‘‘ ‘strong incentives forservice providers and copyright owners tocooperate to detect and deal with copy-right infringements that take place in thedigital network environment.’ ’’ Rossi, 391F.3d at 1003 (quoting H.R.Rep. No. 105–551, pt. 2, at 49 (1998)). For instance, acopyright owner who suspects that hercopyright is being infringed ‘‘must followthe notice and take down provisions setforth in § 512(c)(3) of the DMCA.’’ Id. at1003. Once properly notified, a serviceprovider must ‘‘respond[ ] expeditiously toremove, or disable access to, the materialthat is claimed to be infringing.’’ Record-ing Industry Ass’n of America v. VerizonInternet Servs., 351 F.3d 1229, 1234(D.C.Cir.2003). If a service provider failsto take down the potentially infringing ma-terial, it exposes itself to copyright liabili-ty.

In addition to these notice and takedown provisions, the DMCA also estab-lishes several ‘‘safe harbors’’ that protectcertain common activities of ISPs. SeeS.Rep. No. 105–190, at 19; H.R.Rep. No.105–551, pt. 2, at 41–42. The DMCA safeharbors do not render a service providerimmune from copyright infringement. SeeEllison, 357 F.3d at 1077. They do, how-ever, protect eligible service providersfrom all monetary and most equitable re-


lief that may arise from copyright liability.See id.; 17 U.S.C. § 512(a)-(d), (j). Thus,even if a plaintiff can show that a safeharbor-eligible service provider has violat-ed her copyright, the plaintiff will only beentitled to the limited injunctive relief setforth in 17 U.S.C. § 512(j). See 17 U.S.C.§§ 512(a)-(d), (j); Verizon Internet Servs.,351 F.3d at 1234.

The DMCA ‘‘safe harbors provide pro-tection from liability for: (1) transitorydigital network communications; (2) sys-tem caching; (3) information residing onsystems or networks at the direction ofusers; and (4) information location tools.’’Ellison, 357 F.3d at 1076–1077 (citing 17U.S.C. §§ 512(a)-(d)).

To be eligible for any of the safe har-bors, a service provider must meet a seriesof threshold conditions. At the outset, aparty seeking safe harbor must, in fact, bea ‘‘service provider’’ as that term is definedunder the DMCA. See 17 U.S.C.§ 512(k)(1)(B). If it fits within that defini-tion, the service provider must then showthat it

(A) has adopted and reasonably imple-mented, and informs subscribers and ac-count holders of the service provider’ssystem or network of a policy that pro-vides for the termination in appropriatecircumstances of subscribers and ac-count holders of the service provider’ssystem or network who are repeat in-fringers; and(B) accommodates and does not inter-fere with standard technical measures.4

17 U.S.C. § 512(i); accord Ellison, 357F.3d at 1080. A service provider that doesnot meet these threshold conditions maynot invoke the DMCA’s safe harbor limita-tions on liability. See Ellison, 357 F.3d at1080.

Once the threshold conditions have beenmet, a service provider must then satisfythe specific requirements for the particularsafe harbor. Amazon asserts that it isentitled to protection for information resid-ing on systems or networks at the di-rection of users. See 17 U.S.C. § 512(c).The § 512(c) safe harbor protects a serviceprovider from liability for ‘‘infringement ofcopyright by reason of the storage at thedirection of a user of material that resideson a system or network controlled or oper-ated by or for the service provider.’’ Toqualify for the § 512(c) safe harbor, a ser-vice provider must show that:

(1) it has neither actual knowledge thatits system contains infringing materialsnor an awareness of facts or circum-stances from which infringement is ap-parent, or it has expeditiously removedor disabled access to infringing materialupon obtaining actual knowledge of in-fringement;(2) it receives no financial benefit direct-ly attributable to infringing activity; and(3) it responded expeditiously to removeor disable access to material claimed tobe infringing after receiving from thecopyright holder a notification conform-ing with requirements of § 512(c)(3).

ALS Scan, Inc. v. RemarQ Communities,Inc., 239 F.3d 619, 623 (4th Cir.2001) (cit-ing 17 U.S.C. § 512(c)(1)). Corbis, for itspart, asserts that Amazon does not qualifyfor liability protection both because it doesnot satisfy the threshold conditions andbecause it does not meet the § 512(c) re-quirements.

2. Threshold Conditions for DMCALiability Protection.

a. Is Amazon a ‘‘Service Provider’’Under the DMCA?

[1] Protection from copyright liabilityunder the DMCA is only available to enti-

4. The term ‘‘standard technical measures’’ re-fers to technical means by which copyright

owners may identify or protect copyrightedworks. See Ellison, 357 F.3d at 1080.


ties that meet the statute’s definition of a‘‘service provider.’’ See 17 U.S.C.§ 512(k)(1). For purposes of the § 512(c)safe harbor,5 a service provider is definedas ‘‘a provider of online services or net-work access, or the operator of facilitiestherefor.’’ See 17 U.S.C. § 512(k)(1)(B).This definition encompasses a broad vari-ety of Internet activities, see, e.g., Aimster,334 F.3d at 655; ALS Scan, 239 F.3d at623, and there is no doubt that Amazon fitswithin the definition. See Hendrickson v.Amazon.Com, 298 F.Supp.2d 914, 915(C.D.Cal.2003) (holding that Amazon meetsthe DMCA’s definition of a service provid-er). Amazon operates web sites, providesretail and third party selling services toInternet users, and maintains computersto govern access to its web sites.6 Theseactivities fall squarely within the broadscope of the § 512(k)(1)(B) definition of‘‘service provider,’’ See, e.g., Hendricksonv. eBay, Inc., 165 F.Supp.2d 1082, 1088(C.D.Cal.2001) (eBay, an operator of anInternet website for purchase and sale ofconsumer goods, qualifies as a service pro-vider).

b. Has Amazon Adopted and Rea-sonably Implemented a User Pol-icy?

The Ninth Circuit has held that theDMCA’s infringement policy requirementhas three prongs. See Ellison, 357 F.3d at1080. A service provider must: 1) adopt apolicy that provides for the termination ofservice access for repeat copyright infring-ers in appropriate circumstances; 2) in-

form users of the service policy; and 3)implement the policy in a reasonable man-ner. See id. As discussed below, Amazonhas satisfied each of the three Ellisonprongs.

i. Amazon Has Adopted a UserPolley.

[2] It is undisputed that Amazon re-quires each zShops vendor to accept aParticipation Agreement that sets forthguidelines for the use of the zShops plat-form. See Pl.’s § 512(i) Mot. at 3. Never-theless, Corbis argues that Amazon hasnot adopted an infringement policy under§ 512(i). Corbis’s primary complaint isthat the Participation Agreement and re-lated policies are too vague with regard toissues of copyright infringement. For ex-ample, Corbis points out that Amazon’suser policies do not include the term ‘‘re-peat infringer’’ and do not describe themethodology employed in determiningwhich users will be terminated for re-peated copyright violations. Corbis as-serts that without such information, Ama-zon has not sufficiently informed its usersof the type of conduct that will cause themto be denied access to Amazon’s services.

The language of § 512(i) and the overallstructure of the DMCA indicate that theuser policy need not be as specific as Cor-bis suggests. The language of § 512(i) istelling in this regard. The key term, ‘‘re-peat infringer,’’ is not defined and thesubsection never elaborates on what cir-cumstances merit terminating a repeat in-

5. The DMCA also provides a different, morerestrictive, definition of ‘‘service provider.’’See 17 U.S.C. § 512(k)(1)(A). This definitiononly applies to entities seeking protectionfrom liability under the ‘‘transitory digital net-work communications’’ safe harbor. See 17U.S.C. § 512(a). The more restrictive defini-tion does not apply to an entity, such asAmazon, that seeks protection under the ‘‘in-formation residing on systems or networks at

the direction of users’’ safe harbor. See 17U.S.C. § 512(k)(1)(B).

6. Corbis argues that Amazon is not a serviceprovider because Amazon does not ‘‘serve toroute or connect online digital communica-tions.’’ Dkt. # 175, Pl.’s Opp. to Def.’s DMCAMot. at 7. This argument is unavailing. Therelevant definition of service provider doesnot require Amazon to engage in such activi-ty. See 17 U.S.C. § 512(k)(1)(B).


fringer’s access. This open-ended lan-guage contrasts markedly with the specificrequirements for infringement notices andtake-down procedures set forth in§ 512(c). See Batzel v. Smith, 333 F.3d1018, 1031 (9th Cir.2003), cert. denied, –––U.S. ––––, 124 S.Ct. 2812, 159 L.Ed.2d 246(2004). The notice and take-down provi-sions demonstrate that Congress infusedthe statute with specific detail when it sochose. The fact that Congress chose notto adopt such specific provisions when de-fining a user policy indicates its intent toleave the policy requirements, and thesubsequent obligations of the service pro-viders, loosely defined.

The open-ended language makes sensegiven the overall structure of the DMCA.In its recent discussion of the DMCA, theNinth Circuit reminded that ‘‘ ‘the wordsof a statute must be read in their contextand with a view to their place in the over-all statutory scheme.’ ’’ Rossi, 391 F.3d at1004 (quoting The Wilderness Soc. v. U.S.Fish & Wildlife Serv., 353 F.3d 1051, 1060(9th Cir.2003) (en banc), amended by 360F.3d 1374 (9th Cir.2004)). The DMCA’sbalancing efforts reflect an understandingthat ‘‘there are different degrees of onlinecopyright infringement, from the inadver-tent to the noncommercial, to the willfuland commercial.’’ S.Rep. No. 105–190, at32; H.R.Rep. No. 105–551, pt. 2, at 44.Given the complexities inherent in identify-ing and defining online copyright infringe-ment, § 512(i) does not require a serviceprovider to decide, ex ante, the specifictypes of conduct that will merit restrictingaccess to its services. As Congress madeclear, the DMCA was drafted with theunderstanding that service providers neednot ‘‘make difficult judgments as to wheth-er conduct is or is not infringing.’’ See id.

This does not mean that the first prongof the Ellison test is a paper tiger. To thecontrary, it is clear that a properlyadopted infringement policy must convey

to users that ‘‘those who repeatedly orflagrantly abuse their access to the inter-net through disrespect for the intellectualproperty rights of others TTT know thatthere is a realistic threat of losing thataccess.’’ Id. Amazon’s policies convey thismessage. Each vendor must agree to theterms of the Participation Agreement be-fore selling on the zShops platform. SeePl.’s 512(i) Mot. at 3. The ParticipationAgreement prohibits the listing, linking, orposting of any material that violates copy-right laws, see Orpet Decl. at ¶ 9, p. 30,and makes it clear that those who violateAmazon’s policies may face a variety ofpenalties, including restricting access toAmazon’s sites and suspension or termi-nation of service, see id. at ¶¶ 20–21, pp.32–34. Finally, and perhaps most impor-tantly, those accused of copyright infringe-ment are informed that repeated violationscould result in ‘‘permanent suspension’’from Amazon sites. See Keeley Decl. at173. Although Amazon does not use theterm ‘‘repeat infringer’’ or precisely trackthe language of the DMCA, the evidenceshows that Amazon has adopted a termi-nation policy as required under § 512(i).

ii. Amazon Has Communicated ItsTermination Policy to Its Users.

[3] Although the evidence indicatesthat Amazon required users to enter intothe Purchase Agreement and accept theCommunity Rules, Corbis asserts that Am-azon has not communicated its infringe-ment policy to its users. See Dkt. # 205,Reply in Supp. of Pl.’s 512(i) Mot. (‘‘512(i)Reply’’) at 8. Corbis argues that Amazonhad two policies, one it presented to usersin the form of the Participation Agreementand Community Rules and a second, inter-nal policy that was not described in theagreements and rules presented to ven-dors. See id. at 8. The internal policyCorbis refers to is a set of criteria used byAmazon when determining whether to ter-


minate a user’s access to the site. Corbisargues that these internal criteria make upAmazon’s actual policy on infringement.Since the internal criteria were never com-municated to users, Corbis argues, Ama-zon has failed to satisfy this prong of theEllison test.

Section 512(i), however, is not so exact-ing. Amazon need only inform users that,in appropriate circumstances, it may ter-minate the user’s accounts for repeatedcopyright infringement. See, e.g., In reAimster Copyright Litigation, 252F.Supp.2d 634, 659 (N.D.Ill.2002), aff’d,334 F.3d 643 (7th Cir.2004) (policy commu-nicated when users informed they ‘‘mayhave their access to all services terminat-ed’’ for repeated copyright violations) (em-phasis added); Perfect 10, Inc. v. CCBill,LLC, 340 F.Supp.2d 1077, 1088–89(C.D.Cal.2004) (policy stating user’s accessmay be terminated deemed sufficient com-munication). The statute does not suggestwhat criteria should be considered by aservice provider, much less require theservice provider to reveal its decision-mak-ing criteria to the user. Amazon needonly put users on notice that they faceexclusion from the service if they re-peatedly violate copyright laws. Amazonhas done so, and has satisfied this prong ofthe Ellison test.

iii. Amazon Has Reasonably Im-plemented Its InfringementPolicy.

[4] The final Ellison prong requiresAmazon to reasonably implement its in-fringement policy. See Ellison, 357 F.3dat 1080; 17 U.S.C. § 512(i)(A). Section512(i) provides little guidance on what con-stitutes reasonable implementation of aninfringement policy. Cases that have ad-dressed this issue generally raise twoquestions. The first is whether the serviceprovider adopted a procedure for receivingcomplaints and conveying those complaintsto users. See id. If such a procedure has

been adopted, then the second question iswhether the service provider nonethelessstill tolerates flagrant or blatant copyrightinfringement by its users. See Perfect 10,Inc. v. Cybernet Ventures, 213 F.Supp.2d1146, 1177–78 (C.D.Cal.2002).

(a) Procedure for Receiving andConveying Complaints.

In Ellison, the Ninth Circuit addressedthe first question, regarding proceduralimplementation of an infringement policy.See Ellison, 357 F.3d at 1080. The Courtanalyzed America Online Inc.’s (‘‘AOL’s’’)infringement policy and identified flaws inhow the policy had been implemented. Atthe time of the allegedly infringing activi-ty, AOL had changed the e-mail address towhich infringement notifications were tobe sent but did not forward messages sentto the old address or notify senders thatthe old e-mail address was inactive. In-stead, ‘‘AOL allowed notices of potentialcopyright infringement to fall into a vacu-um and to go unheeded.’’ Id. Because ofthis flawed notification procedure, theCourt found that it was ‘‘difficult to con-clude as a matter of law TTT that AOL had‘reasonably implemented’ a policy againstrepeat infringers.’’ Id.

The Northern District of Illinois reacheda similar conclusion in Aimster, 252F.Supp.2d at 659. When determiningwhether a repeat infringer policy had beenreasonably implemented, the court focusedon whether the policy allowed the serviceprovider to communicate infringement no-tices to the service users. In Aimster,defendant had adopted a repeat infringerpolicy but, because of defendant’s own en-cryption system, could not identify infring-ing users. The court held that defendant’srepeat infringer policy had not been prop-erly implemented. As the court noted,‘‘adopting a repeat infringer policy andthen TTT eviscerating any hope that such a


policy could ever be carried out is not an‘implementation’ as required by § 512(i).’’Id.

Here, the evidence indicates that Ama-zon developed a sufficient procedure forimplementing its infringement policy. Itis undisputed that Amazon’s zShops plat-form includes over 40 million listings. SeeOrpet Decl. at ¶ 27. Amazon has cancelledmillions of listing for violations of its userpolicies. See id. at ¶ 26. Amazon notifiesthe vendor of the cancellation through e-mail and warns that repeated violations ofthe rules may result in ‘‘permanent sus-pension’’ from Amazon cites. See KeeleyDecl. at 173. In addition, Amazon hasterminated access to zShops for hundredsof vendors for egregious or repeated viola-tions of its user policies. See Orpet Decl.at ¶ 26.

Corbis points out that these figures donot differentiate between action taken forcopyright infringement and action takenfor other policy violations. The evidence,however, indicates that Amazon does re-spond to allegations of copyright infringe-ment. See Keeley Decl. at ¶ 15, pp. 123–131. Amazon’s practice is to promptlycancel a listing once it receives adequatenotice that the listing violates another’scopyrights. See Keeley Decl. at 105–106.Amazon informs the listing vendor via e-mail that ‘‘your listing may have violatedthe intellectual property rights of othersand the Community Rules that govern ourAuction, zShops, and Amazon Marketplacesites.’’ Orpet Decl. at ¶ 25. The e-mailalso provides the vendor with the com-plaining party’s contact information. Seeid. Finally, as with other cancellations,Amazon warns vendors that repeated vio-lations may result in permanent suspen-sion from the Amazon site. See OrpetDecl. at ¶ 25. This evidence indicates thatAmazon has properly implemented a pro-cedure for addressing copyright com-

plaints and enforcing violations of its poli-cies.

As Corbis points out, however, Amazon’sinfringement policy has not been able toprevent certain vendors from reappearingon the zShops platform under pseudonyms.Even though Amazon’s policies prohibitvendors from opening new accounts oncethe original account has been terminated,see Keeley Decl. at 95, Posternow has beenable to open at least two new accountsunder slightly different names since it wasinitially terminated in June 2003. See Dkt.# 191, Decl. of Claire Keeley in Supp. ofOpps. to Summ. J. Mots. (‘‘Keeley Opp.Decl.’’), at 651–655.

Although this type of behavior is under-standably vexing for a copyright holderlike Corbis, it is not clear how Posternow’sefforts to sidestep Amazon’s policiesamount to a failure of implementation.Corbis has not alleged that Amazon inten-tionally allowed Posternow to open azShops account or suggested that a moreeffective means of denying Posternow’s ac-cess could have been implemented by Am-azon. Compare A & M Records, Inc. v.Napster, Inc., 2000 U.S. Dist. LEXIS 6243,*28–29, 2000 WL 573136, *9 (N.D.Cal.2000) (expert evidence that additional mea-sure to thwart repeat violations could havebeen taken).

Instead, Corbis merely asserts that Pos-ternow’s reappearance shows that the in-fringement policy is a failure. This argu-ment, however, fails to pass summaryjudgment muster. Corbis is required topresent ‘‘specific facts showing that thereis a genuine issue for trial.’’ Celotex Corp.v. Catrett, 477 U.S. 317, 323, 106 S.Ct.2548, 91 L.Ed.2d 265 (1986). An infringe-ment policy need not be perfect; it needonly be reasonably implemented. SeeCCBill 340 F.Supp.2d at 1089. Here, Cor-bis has not brought forth any facts tosuggest that Amazon could have used an-


other, more effective and reasonable,method for preventing disingenuous usersfrom re-accessing zShops.7 In Napster, bycomparison, the copyright holder plaintiffsavoided summary judgment on § 512(i) byproviding expert testimony that Napstercould have kept terminated users from re-accessing the service by blocking theuser’s Internet protocol address. SeeNapster, 2000 U.S. Dist. LEXIS 6243,*28–29, 2000 WL 573136, *9. Corbis’s si-lence in this regard is telling. The merefact that Posternow appeared on zShopsunder a different user name and identitydoes not, by itself, create a legitimatequestion of fact regarding the proceduralimplementation of Amazon’s terminationpolicy.

(b). Tolerating Flagrant or Bla-tant Copyright Infringement.

Even with proper enforcement proce-dures, a copyright holder may still demon-strate that the service provider has notsatisfied § 512(i) if there are specific in-stances demonstrating that the serviceprovider tolerates repeat copyright in-fringement by its users. As § 512(i)makes clear, however, termination of auser because of repeated copyright in-fringement is required only in ‘‘appropri-ate circumstances.’’ See 17 U.S.C.§ 512(i). Amazon need not conduct activeinvestigation of possible infringement ormake a decision regarding difficult in-fringement issues. See Cybernet, 213F.Supp.2d at 1176–77. Because it does nothave an affirmative duty to police its users,failure to properly implement an infringe-ment policy requires a showing of instanc-es where a service provider fails to termi-

nate a user even though it has sufficientevidence to create actual knowledge of thatuser’s blatant, repeat infringement of awillful and commercial nature. See Cyber-net, 213 F.Supp.2d at 1177; see also, Cos-tar Group Inc. v. Loopnet, Inc., 164F.Supp.2d 688, 703 (D.Md.2001) (citingH.R.Rep. No. 105–551, Part 2, at p. 61),aff’d, 373 F.3d 544 (4th Cir.2004).

Corbis identifies two specific vendorsthat it believes typify Amazon’s failed im-plementation—Famed & Framed and Pos-ternow. Corbis provides evidence that,between October, 2002 and February,2003, Amazon received three e-mails inwhich the sender claimed that zShops list-ings posted by Famed & Framed violatedthe sender’s copyrights. See Pl.’s 512(i)Mot. at 6–7. Similarly, between June,2002 and February, 2003, Amazon receivedseven e-mails in which the sender claimedthat zShops listings posted by Posternowviolated the sender’s copyrights. See id.at 7. Both Famed & Framed and Poster-now were vendor defendants in this law-suit.8 Amazon did not terminate eitherparty’s access to zShops until after thissuit was filed. See Orpet Decl. at ¶ 30.

The Famed & Framed and Posternowexamples do not provide evidence that Am-azon had knowledge of blatant, repeat in-fringement that would have required Ama-zon to terminate access to the vendors’zShops sites. Although efforts to pindown exactly what amounts to knowledgeof blatant copyright infringement may bedifficult, it requires, at a minimum, that aservice provider who receives notice of acopyright violation be able to tell merelyfrom looking at the user’s activities, state-

7. In some respects, the evidence regardingPosternow’s efforts to continue to sell onzShops suggests that Amazon’s procedures fordealing with repeat infringers are properlyimplemented. Each time that Amazon hasbeen made aware of Posternow’s pseudony-mous zShop sites, Amazon has immediately

cancelled the listings and terminated the ac-count.

8. None of the e-mails to Amazon in which thesenders complained that Famed & Framed orPosternow were infringing copyrights weresent by Corbis or its representatives.


ments, or conduct that copyright infringe-ment is occurring. See Cybernet, 213F.Supp.2d at 1177. Examples of such bla-tant infringement may include statementsfrom the vendor that a product is boot-legged or pirated, see eBay, 165 F.Supp.2dat 1093 n. 14, chat rooms hosted by theservice provider in which users discusshow the service can be used to circumventcopyright laws, see Aimster, 252 F.Supp.2dat 652, or the offering of hundreds of audiofiles in a single day for peer to peer copy-ing, see Verizon Internet Srvs., 351 F.3d at1233. Corbis has presented no such exam-ples of blatant infringing activity on thevendor defendants’ zShops cites.

Corbis argues, however, that the noticesregarding infringing items on Famed &Framed and Posternow were sufficient toshow blatant copyright infringement.Even assuming that the notices compliedwith the DMCA’s notice requirements, see17 U.S.C. § 512(c)(3), such notices are notthe sine qua non of copyright liability.9

See Ellison, 357 F.3d at 1077 (claims foron-line copyright infringement are evaluat-ed just as they would be in the non-onlineworld). A copyright owner may have agood faith belief that her work is beinginfringed, but may still be wrong. Thenotification requirement does not take intoaccount that a vendor may a have ‘‘a legiti-mate fair use defense, or can otherwiseinvoke any of the myriad other factors thatgo into evaluating a copyright infringe-ment claim.’’ 3 Melville B. Nimmer &David Nimmer, NIMMER ON COPYRIGHT,§ 12B.02[B][2], at 12B–36. Although thenotices have brought the listings to Ama-zon’s attention, they did not, in themselves,

provide evidence of blatant copyright in-fringement.

Corbis cites testimony from Eric Orpet,Amazon’s quality compliance manager, asevidence that Amazon knew a portion ofPosternow’s inventory was infringingbased on the notices of infringement.When confronted with the notices of in-fringement, Mr. Orpet stated that, ‘‘basedon what has been communicated to us, asmall portion of [Posternow’s] inventorywould be construed as infringing.’’ SeeKeeley Decl. at 118. This statement wasmade after a discussion in which Mr. Orpetrepeatedly asserted that the term ‘‘repeatinfringer’’ had not been defined. See id. at115, 119. In addition, Mr. Orpet assertedthat Posternow was not a repeat infringer,but that Amazon had ‘‘received repeat vio-lation notification emails’’ about Poster-now. See id. at 122.

In evaluating Mr. Orpet’s statements,the recent Rossi decision is instructive. InRossi, the Ninth Circuit held that the term‘‘knowing misrepresentation,’’ as it is usedin the DMCA, requires ‘‘actual knowledgeof misrepresentation.’’ See Rossi, 391F.3d at 1005. A party does not make aknowing misrepresentation ‘‘simply be-cause an unknowing mistake is made, evenif [the party] acted unreasonably in mak-ing the mistake.’’ Id. Here, even if Ama-zon acted unreasonably when it failed toterminate Posternow, that unreasonableact is not the equivalent of having actualknowledge that Posternow was engaged inblatant, repent infringement. Actualknowledge of blatant, repeat infringementcannot be imputed merely from the receiptof notices of infringement. Instead, there

9. In this regard, this Court respectfully dis-agrees with CCBill, in which the district courtfor the Central District of California held thatreceipt by the service provider of two or moreDMCA compliant notices about one of itsusers required termination under § 512(i).See 340 F.Supp.2d at 1088. Although there

may be instances in which two or moreDMCA compliant notices make a service pro-vider aware of a user’s blatant, repeat in-fringement, the notices alone do not make theuser’s activity blatant, or even conclusivelydetermine that the user is an infringer.


must be additional evidence available tothe service provider to buttress the claimof infringement supplied by the notices.Here, Corbis provides no additional evi-dence that was available to Amazon thatwould have led Amazon to conclude thatPosternow was a blatant, repeat infringer.

In fact, outside of the third party no-tices, Corbis lacks other evidence that Am-azon ignored blatant copyright infringe-ment by Posternow and Famed & Framed.For instance, there is no evidence suggest-ing that Amazon would have been able totell, merely by looking at the Famed &Framed and Posternow listings, that theposters and photos being sold infringedanother’s copyrights. Without some evi-dence from the site raising a red flag,Amazon would not know enough about thephotograph, the copyright owner, or theuser to make a determination that thevendor was engaging in blatant copyrightinfringement. See S.Rep. No. 105–190, p.30 (merely being aware of ‘‘one or morewell known photographs of a celebrity at asite’’ does not provide a service providerwith knowledge of possible infringement).

With respect to Famed & Framed, Cor-bis makes much of evidence that Amazonknew that Famed & Framed did not ownthe copyrights to the posters and images itsold. See Pl.’s 512(c) Mot. at 8. Corbis,however, presents this evidence in a some-what selective fashion. Corbis neglects tomention that the Famed & Framed repre-sentative unequivocally stated that he in-formed Amazon that Famed & Framedhad the right to sell all of the posters in itsinventory. See Keeley Decl. at ¶ 10, p. 48.As Corbis is aware, owning a copyrightand having the legal right to sell the copy-righted image are two very differentthings.

In fact, there is at least some evidenceto suggest that Posternow and Famed &Framed were not the kind of ‘‘repeat in-fringers’’ envisioned under § 512(i). As

late as July, 2003, Posternow indicated toAmazon that all of its products were offi-cially licensed. See id. at ¶ 25, pp. 170,171. In addition, there is evidence thatFamed & Framed attempted to work withAmazon to ensure that allegedly infringingitems did not get re-listed on zShops. Seeid. at ¶ 26, p. 174. Such assertions by thetwo users militate against a finding thatAmazon turned a blind eye to blatant,repeat infringement. Indeed, for Amazonto determine that these two users wereinfringers, it would have had to conductthe type of investigation that the courtsand the legislature has found unnecessary.See Cybernet, 213 F.Supp.2d at 1176–77.

c. Does Amazon Accommodate andNot Interfere with StandardTechnical Measures?

Corbis has not challenged Amazon’s as-sertion that it accommodates and does notinterfere with standard technical measuresused to identify and protect copyrightedworks. Accordingly, this Court finds thatthis threshold condition has been met.

3. The Safe Harbor Conditions Un-der § 512(c).

[5] Having satisfied the threshold con-ditions, Amazon must still meet the threeconditions for liability protection set forthin § 512(c)(1)(A)-(C). First, Amazon mustshow that it does not have actual or appar-ent knowledge that material on its networkis infringing. See 17 U.S.C.§ 512(c)(1)(A)(i) & (ii). If Amazon doeshave actual or apparent knowledge, it mustshow that it acted ‘‘expeditiously to re-move, or disable access to, the [infringing]material.’’ 17 U.S.C. § 512(c)(1)(A)(iii).Second, Amazon must show that it doesnot receive a financial benefit directly at-tributable to any infringing activity that itmaintains the right and ability to control.Third, Amazon must show that it has expe-


ditiously removed or disabled access toallegedly infringing material for which ithas received appropriate notice under§ 512(c)(3).

Amazon asserts that it has met all theelements necessary to invoke liability pro-tection under § 512(c). Corbis does notchallenge Amazon’s claim that it acts expe-ditiously to remove or disable access toallegedly infringing material in accord withthe third safe harbor element. Corbis ar-gues, however, that Amazon does not fulfillthe requirements of § 512(c)(1) because (a)it knew or should have known of infringe-ments of Corbis Images by zShops ven-dors, and (b) it receives a financial benefitdirectly attributable to the infringing activ-ity and has the right and ability to controlsuch activity.

a. Knowledge of Infringement.

To enjoy the § 512(c) safe harbor Ama-zon must show that it (1) does not haveactual knowledge that the material or anactivity using the material on the systemor network is infringing, and (2) is notaware of facts or circumstances fromwhich infringing activity is apparent. If aservice provider does obtain either actualor apparent knowledge, it may still invokethe § 512(e) safe harbor if it acts expedi-tiously to remove or disable access to theinfringing material

In all of the published cases addressingthe knowledge component of § 512(c), thecopyright holder has provided evidencethat it notified the service provider of theinfringing material. See, e.g., Ellison, 357F.3d at 1075 (DMCA compliant notice sentto service provider); ALS Scan, 239 F.3dat 620–21 (pre-suit letter substantiallycomplying with DMCA sent to service pro-vider); Amazon, 298 F.Supp.2d at 915(plaintiff attempted to notify service pro-vider); eBay, 165 F.Supp.2d at 1084–85(non-DMCA-compliant cease and desistletters sent); Costar, 164 F.Supp.2d at 703

(plaintiff sent DMCA notification ofclaimed infringement). The notice of in-fringement constitutes evidence of the ser-vice provider’s knowledge. Under theDMCA, the service provider may attemptto refute this knowledge by showing thatthe notice failed to substantially complywith the DMCA’s notice requirements.See 17 U.S.C. § 512(c)(3)(B).

This case differs from other cases ad-dressing the § 512(c) knowledge compo-nent. Here, Corbis acknowledges that itnever attempted to notify Amazon thatzShops vendors were selling images thatviolated Corbis copyrights. Corbis chosenot to address the copyright infringementissues through the DMCA’s notice provi-sions, but instead decided to file this in-fringement suit. Corbis, of course, wasunder no obligation to give notice ofclaimed infringement before filing this suit.See H.R.Rep. No. 105–551, pt. 2, at 54. Itsdecision to forego the DMCA notice provi-sions, however, stripped it of the mostpowerful evidence of a service provider’sknowledge—actual notice of infringementfrom the copyright holder. See 3 NIMMER

ON COPYRIGHT, § 12B.04[A][3], at 12B–53.

Corbis asserts that its decision to foregonotice is of no import. It proffers evidenceof notices provided by other copyrightholders addressing non-Corbis photos. Inaddition, Corbis provides evidence sug-gesting that Amazon was aware that Cor-bis licensed celebrity photos. Based onthis evidence, Corbis argues that Amazonshould have known that zShops vendorssold infringing Corbis Images.

This evidence does not create a materialissue of fact regarding either Amazon’sactual knowledge or its apparent knowl-edge of infringing material on the zShopsplatform. With regard to actual knowl-edge, this evidence is wholly insufficient.Taken in the light most favorable to Cor-bis, the evidence shows that Amazon knew


Corbis licensed celebrity photos and thatcelebrity photos were vulnerable to copy-right infringement. The issue is notwhether Amazon had a general awarenessthat a particular type of item may beeasily infringed. The issue is whetherAmazon actually knew that specific zShopsvendors were selling items that infringedCorbis copyrights. Corbis provides no evi-dence from which such actual knowledgecould be gleaned.

Corbis fares little better with regard todemonstrating Amazon’s apparent knowl-edge. Corbis contends that it has provid-ed sufficient evidence to show that Amazon‘‘knew or should have known’’ that zShopsvendors were selling infringing Corbis Im-ages. Corbis, however, misstates the stan-dard of knowledge necessary under§ 512(c). In determining whether a ser-vice provider is ‘‘aware of facts or circum-stances from which infringing activity wasapparent,’’ 17 U.S.C. § 512(C)(1)(A)(ii), thequestion is not ‘‘what a reasonable personwould have deduced given all the circum-stances.’’ 3 NIMMER ON COPYRIGHT,§ 12B.04[A][1], at 12B–49. Instead, thequestion is ‘‘whether the service providerdeliberately proceeded in the face of bla-tant factors of which it was aware.’’ Id.As articulated by Congress, apparentknowledge requires evidence that a serviceprovider ‘‘turned a blind eye to ‘red flags’of obvious infringement.’’ H.R.Rep. No.105–551, pt. 2, at 42.

Congress’s discussion of apparentknowledge, and what evidence demon-strates such knowledge, is instructive.Absent evidence of its own efforts to notifya service provider, a copyright owner couldestablish apparent knowledge if she couldshow that an online location at which hercopyrighted material was available wasclearly a ‘‘pirate site.’’ Id. Pirate sites areones that are ‘‘obviously infringing becausethey typically use words such as ‘pirate,’‘bootleg’ or slang terms in their URL and

header information to make their illegalpurpose obvious.’’ Id. Congress describedthe advertisement of illegal copyright ac-tivity through such slang words as a ‘‘ ‘redflag’ of obvious infringement,’’ and indicat-ed that the infringing nature of sites con-taining such red flags would be apparentfrom even a ‘‘brief and casual viewing.’’Id. Thus, once a service provider is awareof a site containing such ‘‘red flags,’’ theservice provider would have apparentknowledge of the infringing activity.

[6] Corbis argues that its strongest ev-idence regarding apparent knowledge isthat Amazon received notices that zShopsvendors were infringing the copyrights ofunrelated parties by selling celebrity pho-tographs. There are a number of prob-lems with this evidence. First, it is notclear which, if any, of the vendors thatwere the subject of the third party noticesare also vendor defendants in this litiga-tion. Second, notices of infringement mustsubstantially comply with the DMCA’s no-tice requirements to be considered evi-dence of a service provider’s knowledge.See ALS Scan, 239 F.3d at 625; 17 U.S.C.§ 512(c)(3)(B)(i). Corbis, however, makesno attempt to suggest that these thirdparty notices were DMCA compliant. As-suming that they did comply, Corbis runsinto yet another problem; the noticeswould still not be considered as evidence ofknowledge if Amazon acted expeditiouslyto cancel the complained of listings. See17 U.S.C. § 512(c)(1)(C). Amazon has as-serted that it promptly cancels a listingafter receiving a notice of infringement,and Corbis never directly challenges thatassertion.

Sweeping aside these difficulties, thethird party notices do not, in themselves,constitute red flags. As Congress sug-gested, evidence of blatant copyright in-fringement will often derive from informa-tion on the offending site. See, e.g.,


H.R.Rep. No. 105–551, pt. 2, at 42. Out-side of the fact that the zShop vendors soldpictures of celebrities, Corbis is silent re-garding the content of the complained oflistings. There is simply nothing to sug-gest that the vendor listings contained evi-dence of blatant copyright infringement.As a result, even if the notices of infringe-ment would have caused Amazon to exam-ine the content of the zShops sites, Corbishas failed to close the link by showing thatthose sites contained the type of blatantinfringing activity that would have sent upa red flag for Amazon.

Corbis’s other evidence of ‘‘red flags’’ issimilarly unavailing. Corbis points outthat IMDb representatives met with Cor-bis representatives in 2001 and that Ama-zon’s corporate counsel was employed atCorbis between 1993 and 1998. See Pl.’s512(c) Mot. at 8–10. Corbis indicates thatthese events provide a link between Ama-zon and Corbis from which apparentknowledge can be inferred, Even ignoringthe tenuousness of these links,10 it wouldonly suggest that Amazon had generalknowledge that photos may be the subjectof online copyright infringement. It pro-vides no evidence from which to infer thatAmazon was aware of, but chose to ignore,red flags of blatant copyright infringementon specific zShops sites.

b. Amazon Does Not Have theRight and Ability to Control theInfringing Activity.

A service provider will be excluded fromthe § 512(c) safe harbor if it (1) ‘‘has the

right and ability to control’’ the infringingactivity, and (2) receives ‘‘a financial bene-fit directly attributable to the infringingactivity.’’ 17 U.S.C. § 512(c)(1)(B). Bothelements must be met for the safe harborto be denied. See 3 NIMMER ON COPYRIGHT,§ 12 12B.04[A][1], at 12B–50.

One court has already ruled on Ama-zon’s right and ability to control infringingactivity on its third party vendor plat-forms. In Hendrickson v. Amazon.Com,the Central District of California held thatAmazon had satisfied this component of§ 512(c), finding that

Amazon merely provided the forum foran independent third party seller to listand sell his merchandise. Amazon wasnot actively involved in the listing, bid-ding, sale or delivery of [the infringingitem]. The fact that Amazon generatedautomatic email responses when the [in-fringing item] was listed and again whenit was sold, does not mean that Amazonwas actively involved in the sale. Oncea third party seller decides to list anitem, the responsibility is on the seller toconsummate the sale. While Amazondoes provide transaction processing forcredit card purchases, that additionalservice does not give Amazon controlover the sale. In sum, Amazon’s evi-dence shows that it did not have controlof the sale of [the infringing item].

Amazon, 298 F.Supp.2d at 918.

Corbis attempts to distinguish Amazonin two ways. First, Corbis notes that,unlike the plaintiff in Amazon, Corbis has

10. Representatives from IMDb and Corbishad one meeting in 2000. Although thismeeting would have made IMDb aware thatCorbis licensed images of celebrities, Corbisdoes not assert that it made Amazon awarethat Corbis faced an infringement threat fromany of the zShops vendors. Furthermore, theemployee who left Corbis to join Amazon wasnot involved in acquiring the group of imagesthat are involved in this litigation. See Def.’s

Opp. to Pl.’s § 512(c) Mot. at 11. Given thatCorbis, itself, had to first conduct an investi-gation before determining whether zShopsvendors were selling unauthorized images, seeDkt. # 188, Decl. of Charles C. Sipos in Supp.of Def.’s Reply to DMCA Mot. (‘‘Sipos ReplyDecl.’’), at ¶ 2, p. 7, it is difficult to imaginethat Amazon would have gleaned such knowl-edge based on these connections.


presented evidence that Amazon was ableto identify vendors and the items sold onthe zShops platform. As an example, Cor-bis notes that Amazon terminated thezShops defendants on the same day Corbisfiled and served its complaint. This evi-dence, however, does not suggest a rightand ability to control under the DMCA.Courts have routinely held that ‘‘the rightand ability to control infringing activity, ‘asthe concept is used in the DMCA, cannotsimply mean the ability of a service provid-er to remove or block access to materialsposted on its website or stored in its sys-tem.’ ’’ CCBill, 340 F.Supp.2d at 1098 (cit-ing Costar, 164 F.Supp.2d at 704). ThisCourt agrees. Merely because Amazoncould identify the zShops defendants andterminate their accounts does not meanthey exercised the type of right and abilityto control that would disqualify them from§ 512(c) safe harbor.

Second, Corbis notes that Amazon metwith several vendors of movie posterswhen the zShops site was launched in1999. Amazon encouraged these vendorsto list their items on zShops. Implicit inthis argument is that Amazon knew, orshould have known, that movie poster ven-dors were solely in the copyright infringe-ment business. As discussed above, thereis no evidence to warrant such a conclu-sion, much less to impute that knowledgeto Amazon. Without some indication thatAmazon intended to pick infringing materi-al for its site, the fact that it advertised thezShops platform does not amount to aright and ability to control the items soldthere.

Outside of providing the zShops plat-form, Amazon did not have the right orability to control vendor sales. Amazon isnever in possession of the products sold byzShops vendors. See Orpet Decl. at ¶ 9;

compare eBay, 165 F.Supp.2d at 1094.Furthermore, Amazon does not previewthe products prior to their listing, does notedit the product descriptions, does not sug-gest prices, or otherwise involve itself inthe sale. See id.; compare Cybernet, 213F.Supp.2d at 1181–82 (service providermaintains right and ability to controlwhere it prescreens sites, gives extensiveadvice regarding content, and prohibits theproliferation of identical sites). The evi-dence provided by Corbis does not suffi-ciently distinguish the previous finding inAmazon. See 298 F.Supp.2d at 918.

Because Amazon does not have the rightand ability to control the infringing materi-al, it is not necessary for this Court toinquire as to whether Amazon receives adirect financial benefit from the allegedlyinfringing conduct. See CCBill, 340F.Supp.2d at 1098.

4. Conclusions Regarding DMCA Li-ability Protection.

Amazon has satisfied all of the thresholdconditions for DMCA protection and all ofthe requirements for protection under the§ 512(c) safe harbor. As a result, Amazonis immune from all monetary relief and,save the limited relief in 17 U.S.C.§ 512(j), all forms of injunctive relief forany copyright infringement committed byzShops vendors on the Amazon site.11

There is no genuine issue of material factthat Amazon is entitled to safe harborprotection under § 512(c).

Since the DMCA protects Amazon fromliability for the 230 images displayed onthe zShops listings, this Court grants Am-azon’s motion for partial summary judg-ment regarding Corbis’s claims of directcopyright infringement relating to those230 images (Dkt.# 153). In practical

11. Amazon has not asserted that DMCA pro-tection applies to Corbis Images that ap-peared on IMDb. Accordingly, Corbis’s Mo-

tion for Partial Summary Judgment AgainstAmazon as to DMCA Eligibility for Its IMDbPlatform (Dkt. # 144) is granted.


terms, the damages and injunctive reliefsought by Corbis are no longer availableand the direct infringement claims relatedto the 230 images on zShops have becomemoot. See Seven Words LLC v. NetworkSolutions, 260 F.3d 1089, 1095 (9th Cir.2001) (where relief no longer available,plaintiff’s claim is moot). The only reliefCorbis could seek is the limited injunctiverelief set forth in § 512(j) of the DMCA.Corbis has never requested such reliefand, considering that Amazon has assertedthat it has terminated the accounts of thedefendant vendors, it is not certain howthe limited injunctive relief would apply inthe context of this litigation. See Friendsof the Payette v. Horseshoe Bend Hydroe-lec., 988 F.2d 989, 996 (9th Cir.1993) (anissue is moot where the court can no long-er provide a cognizable remedy). At thispoint, any opinion rendered on the directcopyright infringement claims related tothe 230 zShops images would be merelyadvisory.

B. Subject Matter Jurisdiction andRegistration of Copyrights.

[7] 17 U.S.C. § 411(a) prohibits a par-ty from suing for copyright infringementin any district court ‘‘until registration ofthe copyright claim has been made in ac-cordance with this title.’’ 12 The parties

agree that some of the Corbis Images thatCorbis claims have been infringed havebeen submitted to the Copyright Office,but have yet to be registered by the Regis-ter of Copyrights.13 Amazon argues thatunder § 411(a), this court has subject mat-ter jurisdiction with regard to only theCorbis Images for which the CopyrightOffice has granted copyright registration.For those Corbis Images that are stillpending registration, Amazon argues thatthe copyright infringement claims must bedenied.

There is a split in authority on thisissue. Some courts have concluded that apending registration does confer federaljurisdiction over a copyright claim. See,e.g., Apple Barrel Productions, Inc. v.Beard, 730 F.2d 384, 386–87 (5th Cir.1984);Dielsi v. Falk, 916 F.Supp. 985, 994 n. 6(C.D.Cal.1996). These courts have con-cluded that the term ‘‘registration’’ in§ 411(a) refers to ‘‘the moment that theplaintiff delivers the fee, deposit and appli-cation to the Copyright Office.’’ LoreeRodkin Management Corp. v. Ross–Si-mons, Inc., 315 F.Supp.2d 1053, 1054–55(C.D.Cal.2004). The leading treatise oncopyright law has concluded that this isthe ‘‘better point of view.’’ 2 NIMMER ON

COPYRIGHT § 716[B][1][a], at 7–155. Other

12. 17 U.S.C. § 411(a) states in full:

Except for an action brought for a violationof the rights of the author under section106A(a), and subject to the provisions ofsubsection (b), no action for infringement ofthe copyright in any United States workshall be instituted until registration of thecopyright claim has been made in accor-dance with this title. In any case, however,where the deposit, application, and fee re-quired for registration have been deliveredto the Copyright Office in proper form andregistration has been refused, the applicantis entitled to institute an action for infringe-ment if notice thereof, with a copy of thecomplaint, is served on the Register ofCopyrights. The Register may, at his or her

option, become a party to the action withrespect to the issue of registrability of thecopyright claim by entering an appearancewithin sixty days after such service, but theRegister’s failure to become a party shallnot deprive the court of jurisdiction to de-termine that issue.

13. The number of Corbis Images that havenot been registered by the Register of Copy-rights is in dispute. Amazon indicates that 86of the Corbis Images were not registered atthe time this case was filed. See Dkt. # 215,Reply in Supp. of Def.’s Copyright Reg. Mot.at 8–9 n. 10. Corbis contends that only 19 ofthe Corbis Images have not been registered bythe Register of Copyrights. See Dkt. # 195,Opp. to Def.’s Copyright Reg. Mot. at 2.


courts have concluded, however, that regis-tration only occurs when the CopyrightOffice grants the registration applicationand conveys a certificate of registration.See, e.g., Loree, 315 F.Supp.2d at 1055;Corbis Corp. v. UGO Networks, Inc., 322F.Supp.2d 520, 522 (S.D.N.Y.2004); Capi-tol Records, Inc. v. Wings Digital Corp.,218 F.Supp.2d 280, 284 (E.D.N.Y.2002);U–Neek, Inc. v. Wal–Mart Stores, Inc.,147 F.Supp.2d 158, 169 (S.D.N.Y.2001).

This Court agrees with the second groupof decisions. A district court does nothave subject matter jurisdiction over aninfringement claim until the Copyright Of-fice grants the registration application andissues a certificate of registration. A re-view of the plain language of the Copy-right Act supports this conclusion. Sec-tion 411(a) makes it clear that jurisdictionis not conveyed ‘‘until registration of thecopyright claim has been made in accor-dance with [the Copyright Act].’’ 17 U.S.C.§ 411(a). Section 410(a) indicates that aclaim must be examined and approved bythe Register of Copyrights before it isregistered.

When, after examination, the Register ofCopyrights determines that TTT the ma-terial deposited constitutes copyrighta-ble subject matter and that the otherlegal and formal requirements of thistitle have been met, the Register shallregister the claim and issue to the appli-cant a certificate of registration underthe seal of the Copyright Office.

17 U.S.C. § 410(a). Although submissionof a claim begins the registration process,a claim is not registered until it is ap-proved by the Register of Copyrights.Under the plain meaning of the language,the Register’s approval triggers thisCourt’s jurisdiction.

Apple Barrel and the group of casesholding otherwise rely on the analysis inNIMMER to support their position. See,e.g., Apple Barrel, 730 F.2d at 386–87;

Dielsi, 916 F.Supp. at 994 n. 6. NIMMER

recognizes that the language of § 411(a)mandates registration of a copyright be-fore a suit may be filed. See 2 NIMMER ON

COPYRIGHT, § 716[B][1][a], at 7–155. NIM-

MER, however, states that the second sen-tence of § 412(a) provides an importantexception to the rule—a copyright appli-cant who has been denied registration isalso entitled ‘‘to institute an action forinfringement if notice thereof, with a copyof the complaint, is served on the Registerof Copyrights.’’ 17 U.S.C. § 412(a). NIM-

MER argues that because an applicant isentitled to federal court jurisdiction re-gardless of the outcome of the registrationapplication, the applicant ‘‘who seeks toregister may proceed to litigate a claim,regardless of whether the Copyright Officeultimately issues the claim, or by contrastdenies itTTTT’’ 2 NIMMER ON COPYRIGHT,§ 716[B][1][a], at 7–155.

Adopting this approach requires insert-ing language into § 411(a) that simply isnot there. As conceded in NIMMER, underthe interpretation it advances, ‘‘it makessense TTT to refer to application for regis-tration [and not registration, itself] as acondition to filing an infringement action,whereas issuance of a registration certifi-cate is a condition to statutory damagesTTT and the other [benefits of registra-tion.]’’ Id. (emphasis in original). ThisCourt, however, would overstep its inter-pretive bounds if it read § 411(a) so broad-ly. Section 411(a) indicates who may in-voke this Court’s jurisdiction for violationof the Copyright Act (those who have re-ceived a final determination on their appli-cation to register their copyright) and, byimplication, excludes everyone else (thosewho have either not registered or whoseapplications for registration are pending).A statute like § 411(a) that ‘‘authorizesspecific action and designates a particularparty empowered to take it is surelyamong the least appropriate in which to


presume nonexclusivity. ‘Where a statuteTTT names the parties granted [the] rightto invoke its provisions TTT such partiesonly may act.’ ’’ Hartford UnderwritersIns. v. Union Planters Bank. N.A., 530U.S. 1, 6–7, 120 S.Ct. 1942, 147 L.Ed.2d 1(2000) (quoting 2A N. Singer, SUTHERLAND

ON STATUTORY CONSTRUCTION § 47.23, p. 217(5th ed.1992)).

Here, § 411(a) gives those who have ap-plied and obtained registration and thosewho have applied and failed to obtain reg-istration the right to file suit in federalcourt. This Court will not expand themeaning of the statute to include thosewhose applications are pending but unde-cided. As a result, the copyright claimsrelating to Corbis Images for which Corbisdoes not have a certificate of registrationare dismissed for lack of subject matterjurisdiction.

C. Direct and Vicarious Copyright In-fringement.

Corbis has filed a motion for partialsummary judgment on its claims of directand vicarious copyright infringement(Dkt.# 147), and Amazon has filed a mo-tion for partial summary judgment chal-lenging Corbis’s copyrights and allegingcopyright misuse (Dkt.# 151). Once theclaims arising from DMCA-protected ac-tivity and the claims relating to unregis-tered images have been culled, only twodirect copyright infringement claims, bothregarding a photograph that appeared onthe IMDb website, remain.

[8] To prove direct copyright infringe-ment against Amazon, Corbis must demon-strate that (1) it owns a valid copyright,and (2) Amazon itself violated one or moreof Corbis’s exclusive rights under the

Copyright Act. See Ellison, 357 F.3d at1076; see also A & M Records, Inc. v.Napster, Inc., 239 F.3d 1004, 1013 (9thCir.2001). The exclusive rights conveyedby copyright ownership include the rightto reproduce the work, the right to pre-pare derivative works based on the work,the right to distribute copies of the workto the public and the right to display thework publicly. See 17 U.S.C. § 106(1)-(3)& (5).

Corbis claims that it owns the copyrightto a photograph of actor Eriks Christensentaken by photographer David Ash (the‘‘Christensen Photo’’). The ChristensenPhoto appeared among a montage of celeb-rity photographs in an advertisement ban-ner on IMDb that provided a link to Ama-zon’s zShops platform. Corbis has movedfor summary judgment regarding whetherAmazon directly violated its copyright in-terests in the Christensen Photo by dis-playing it on IMDb.14 Amazon argues thatit should be entitled to summary judgmentbecause Corbis has failed to provide evi-dence that the Christensen Photo has beenregistered by the Copyright Office.

[9] Existence of a certificate of regis-tration from the United States CopyrightOffice (‘‘registration certificate’’) is primafacie evidence of a valid copyright. See 17U.S.C. § 410(c); Apple Computer, Inc. v.Formula Intern., Inc., 725 F.2d 521, 523(9th Cir.1984). Corbis has provided a reg-istration certificate numbered VA 1–181–996 (‘‘Registration No. ’996’’), which itclaims covers its derivative and compila-tion copyright interests in the ChristensenPhoto. See Keeley Decl. at 162. Regis-tration No. ’966 is entitled ‘‘Corbis DigitalOnline October 2002 & Automated Data-

14. Corbis also claimed that Amazon directlyinfringed its copyrights in an image of VinDiesel displayed on IMDb. Corbis, however,has acknowledged that it has applied for reg-istration of the Vin Diesel image but that the

image has yet to be registered. As a result,this Court does not have subject matter juris-diction with respect to that image. See Sec-tion III. B, infra.


base.’’ See Dkt. # 217, Supp. Decl. ofBeth A. Colgan in Supp. of Mot. for PartialSumm. J. on Lack of Copyright Registra-tions (‘‘Colgan Supp. Decl.’’), Ex. 67, p.371. Corbis is listed as an author alongwith photographers ‘‘Fabian Cevallos,John Springer, Micheline Pelletier & Oth-ers.’’ Id. The work is listed as a derivativeor compilation and is described as‘‘[m]onthly updates of new unpublishedphotographs and digitally enhanced im-ages, as well as a compilation of digitallyenhanced, unpublished, previously publish-ed and public domain images.’’ Id. at 372.A deposit of the work was filed with theCopyright Office. See id. at 371.

[10] Corbis has also provided a secondregistration certificate numbered VA 1–207–124 (‘‘Registration No. ’124’’), which itclaims covers the photographer’s copyrightinterests in the Christensen Photo. SeeDkt. # 209, Decl. of Claire L. Keeley inSupp. of Corbis’s Mots. for Summ. J.(‘‘Keeley S.J. Decl.’’), at 622–623. Regis-tration No. ’124 is entitled ‘‘Erika Chris-tensen’’ and indicates that the photographwas published in Detour magazine in No-vember, 2000. Id. David Ash submittedthe photograph and is listed as its author.15

A copy of the photograph was depositedwith the Copyright Office.

Corbis has provided the Court with aspreadsheet listing the 232 images itclaims have been infringed. See KeeleyOpp. Decl., at ¶ 10, pp. 030–087. The

spreadsheet indicates that the ChristensenPhoto is copyrighted under RegistrationNos. ’966 and ’124. See id. at 047. Corbisargues that Registration Nos. ’966and ’124, combined with its spreadsheet,demonstrate prima facie evidence of validcopyrights in the Christensen Photo. Am-azon, in turn, has spent much time andenergy pointing out inconsistencies in theCorbis spreadsheet. Amazon argues thatit should be granted summary judgmentbecause Corbis has failed to prove that itowns the copyrights to the ChristensenPhoto.

[11] There exists a legitimate questionof fact regarding whether RegistrationNos. ’966 and ’124 cover the ChristensenPhoto. Although Corbis does have copy-right certificates, those certificates areonly prima facie evidence of ‘‘ ‘the validityof the copyright and of the facts stated inthe certificate.’ ’’ Seiler v. Lucasfilm,Ltd., 808 F.2d 1316, 1321 (9th Cir.1986)(quoting 17 U.S.C. § 401(c)), cert. denied,484 U.S. 826, 108 S.Ct. 92, 98 L.Ed.2d 53(1987). The facts stated in the ’966 certifi-cate make no mention of Mr. Ash, Ms.Christensen, or the photograph. The ’124certificate fares little better, merely indi-cating that it covers a photograph of ErikaChristensen taken by David Ash. Althoughthe Corbis spreadsheet links the registra-tions with the Christensen Photo, there isno way to corroborate this link. There isnothing on the face of the certificates for

15. Amazon also argues that Corbis should bedenied summary judgment because it doesnot have standing to assert an infringement ofMr. Ash’s copyright interest in the Christen-sen Photo. Although not a model of clarity,Corbis’s contract with Mr. Ash states that Mr.Ash transfers to Corbis ‘‘the right to use,reproduce, publish, exhibit, perform, publiclydisplay, distribute, broadcast and transmit[the photographs].’’ Dkt. # 149, Decl. ofDavid N. Weiskopf in Supp. of Pl.’s Mots. forPart. Sum. J., ¶ 3, at 32. Corbis has ‘‘full andcomplete authority to make and settle claims

or to institute proceedings in Corbis’s or [Mr.Ash’s] name but at Corbis’s expense to recov-er damages for [the photographs] TTT and forthe unauthorized use of [the photographs].’’Id. at 34. The rights transferred by the con-tract are among those exclusive rights enu-merated in § 106 of the Copyright Act. See 17U.S.C. § 106. It is well-settled that the recip-ient of such transferred rights may sue forinfringement of those rights. See Campbell v.Board of Trustees of Leland Stanford JuniorUniversity, 817 F.2d 499, 504 (9th Cir.1987)(citing 17 U.S.C. § 501(d)).


Registration Nos. ’966 and ’124 to confirmthat the Christensen Photo is includedamong the deposited photos. The onlyway to determine with any certaintywhether Registration Nos. ’966 and ’124cover the Christensen Photo is to review acopy of the deposits included with the reg-istration applications.

Although the deposits are equally avail-able to both parties from the CopyrightOffice, see Copyright Office Circular 6(2002), neither party bothered to obtain acopy of the deposits and provide them tothe Court. Without the deposit, Corbiscannot show that the Christensen Photo isamong the photographs covered by Regis-tration Nos. ’966 and ’124. Because Ama-zon has equal access to the deposit, itcannot simply rest on Corbis’s failure toprovide the evidence. To prove that Reg-istration Nos. ’966 and ’124 do not protectthe Christensen Photo, Amazon has anobligation to obtain and provide the evi-dence available to it. Without the deposit,there remains a legitimate question of factregarding whether the Christensen Photois protected by Registration Nos. ’966and ’124.

For the same reasons, Amazon’s chal-lenge to Registration No. ’966 as a deriva-tive copyright (Dkt. # 151) must also bedenied. Amazon’s motion is premised onthe theory that Registration No. ’966 isinvalid because the enhanced image lackssufficient originality and would negativelyimpact the original copyrighted image.Determining whether Amazon is correctrequires a comparison of the images de-posited with the Copyright Office for Reg-istration No. ’966 with the image depositedfor Registration No. ’124. As noted, nei-

ther party has provided that information,and this Court is simply unable to tellwhether the ’966 Copyright is valid with-out viewing the deposits.16

Finally, Amazon has also filed a motionfor partial summary judgment on Corbis’smeasure of actual damages (Dkt.# 154).Amazon contends that Corbis’s measure ofactual damages is too speculative andshould be rejected by this Court. In ac-cord with this Order, at most Corbis isentitled to damages only for violations ofits copyright interests in Registration Nos. ’966 and ’124 by the unauthorized displayof the Christensen Photo on IMDb. Themotion on actual damages addressed Cor-bis’s calculation of damages with regard toall 232 photos that Corbis alleged wereinfringed. Because this Order changes thescope and extent of the damages availableto Corbis, the Court denies Amazon’s mo-tion regarding damages. Either partymay revisit this issue if, after consultation,they determine that the issue of actualdamages with respect to the ChristensenPhoto is ripe for summary judgment.

D. Lanham Act and State Law Claim.

1. Lanham Act Claims.

In its complaint, Corbis alleges claims oftrademark dilution under § 43(c) of theLanham Act, 15 U.S.C. § 1125(c), et seq.,and false designation of origin under§ 43(a) of the Lanham Act, 15 U.S.C.§ 1125(a). See Compl. ¶¶ 120–144. Ama-zon has moved for summary judgmentwith regard to these claims. See Def.’sTrademark and State Law Mot. at 2. In itsopposition, Corbis failed to proffer any

16. Amazon’s defense of copyright misuse(Dkt. # 151) is also denied. Corbis has notoverstepped its bounds in pursuing its copy-right interests. The areas of copyright litiga-tion touched on by this suit are relatively new,often conflicting and certainly open to theinterpretation adopted by Corbis. The evi-

dence does not support a conclusion that Cor-bis is using its copyright interests ‘‘in a man-ner violative of the public policy embodied inthe grant of a copyright.’’ Lasercomb Amer-ica, Inc. v. Reynolds, 911 F.2d 970, 978 (4thCir.1990).


argument in support of its trademark dilu-tion claim. See, generally, Opp. to Def.’sTrademark and State Law Mot. As a re-sult, this Court grants Amazon’s motionfor summary judgment with regard to thatclaim. See Fed.R.Civ.P. 56(e). For thereasons set forth below, this Court alsogrants Amazon’s motion for summaryjudgment under § 43(a) of the LanhamAct.

[12] Section 43(a) prohibits the use offalse designations of origin and false rep-resentations in the advertising and sale ofgoods and services. See Smith v. Monto-ro, 648 F.2d 602, 603 (9th Cir.1981).Among the activities proscribed under theLanham Act is ‘‘reverse passing off.’’ Re-verse passing off occurs when someonemarkets a product as her own, eventhough someone else created the product.See id. at 1187. It can occur either ‘‘ex-pressly,’’ when the wrongdoer removes thetrademark of another and sells that prod-uct under a name chosen by the wrong-doer, or ‘‘impliedly,’’ when the wrongdoersimply removes or otherwise obliteratesthe name of the manufacturer or sourceand sells the product in an unbrandedstate. See Shaw v. Lindheim, 919 F.2d1353, 1364 (9th Cir.1990).

[13] Corbis provides two alternativeversions of its implied reverse passing offclaim. First, Corbis alleges that Amazoncommitted reverse passing off by display-ing Corbis Images on IMDb without cred-iting Corbis or its photographers for thoseimages, and instead misrepresenting thatthe images came from other sources. SeePl.’s Opp. to Def.’s Trademark and StateLaw Mot. at 7. Second, Corbis asserts thatthe zShops vendors committed reversepassing off and that Amazon is contribu-torily liable for their conduct.

Courts have been reluctant to allow anoverlap between claims involving the Lan-ham Act and copyright law and have dis-missed Lanham Act claims where the

copyright laws provided an adequate reme-dy. See Dastar Corp. v. Twentieth Centu-ry Fox Film Corp., 539 U.S. 23, 34, 123S.Ct. 2041, 2048, 156 L.Ed.2d 18, 30 (2003);see also Shaw, 919 F.2d at 1364–65 (‘‘Wedecline to expand the scope of the LanhamAct to cover cases in which the FederalCopyright Act provides an adequate reme-dy’’). Amazon asserts that Corbis’s Lan-ham Act claim is a mere reiteration of itsclaims under the Copyright Act and, ac-cording to Dastar and Shaw, should bedismissed.

The subject matter of copyright is setforth in 17 U.S.C. § 102(a). It states that:

Copyright protection subsists, in accor-dance with this title, in original works ofauthorship fixed in any tangible mediumof expression, now known or later devel-oped, from which they can be perceived,reproduced, or otherwise communicated,either directly or with the aid of a ma-chine or device. Works of authorshipinclude the following categories:(5) pictorial, graphic, and sculpturalworks TTT

See id. Corbis summarizes its LanhamAct claim by stating that Amazon ‘‘dis-played Corbis’s images on its web site,IMDb.com, without permission or licensefrom Corbis. Additionally, Corbis’s im-ages were sold on Amazon.com’s zShops,without permission from or credit to Cor-bis or its photographers.’’ Pl.’s Opp. toDef.’s Trademark and State Law Mot. at1–2. The Copyright Act, however, ex-pressly provides protection for suchwrongdoing. See 17 U.S.C. §§ 106 & 501.Indeed, § 106 indicates that an owner of acopyright in a photograph has the exclu-sive rights to reproduce, distribute copiesof, and display that photograph. See 17U.S.C. §§ 102(a)(5), 106(1), (3), & (5). TheCopyright Act provides for monetary rem-edies, including recovery of both the own-er’s actual damages and the infringer’s


profits, and, in some circumstances, statu-tory damages, (17 U.S.C. § 504(a)-(c)), in-junctive remedies, (17 U.S.C. § 502), andattorney’s fees, (17 U.S.C. § 505).

By Corbis’s own admission, it seeks thesame remedies under the Lanham Act asare available under the Copyright Act. SeePl.’s Opp. to Def.’s Trademark and StateLaw Mot. at 10 (‘‘damages available underthe Lanham Act include profits of the de-fendant and damages sustained by theplaintiff’’). What is more, Corbis concedesthat the ‘‘Ninth Circuit has refused toexpand Lanham Act protection in caseswhere the Copyright Act provides an ade-quate remedy.’’ Pl.’s Opp. to Def.’s Trade-mark and State Law Mot. at 6 (emphasisin original). Nevertheless, Corbis assertsthat these redundant claims are permissi-ble here because both the Copyright Actclaim and Lanham Act claim involve ‘‘bodi-ly appropriation.’’ See id. (citing Salim v.Lee, 202 F.Supp.2d 1122, 1128 (C.D.Cal.2002)).

[14] Corbis’s attempt to create an ov-erlap between the Copyright Act and theLanham Act fails for the following reasons.First, to be a cognizable violation of theLanham Act, reverse passing off must al-ways include bodily appropriation. SeeShaw, 919 F.2d at 1364; Summit Mach.Tool Mfg. Corp. v. Victor CNC Sys., Inc., 7F.3d 1434, 1438 (9th Cir.1993). The Salimholding promoted by Corbis would, itseems, allow for an overlap between theCopyright Act and Lanham Act in all re-verse passing off cases. The Ninth Cir-cuit, however, has expressly indicated areluctance to allow such an overlap. SeeShaw, 919 F.2d at 1364–65 (‘‘We decline toexpand the scope of the Lanham Act tocover cases in which the Federal Copy-right Act provides an adequate remedy’’).And the Supreme Court recently has con-firmed an interest in maintaining a distinc-tion between the two claims. See Dastar,539 U.S. at 34, 123 S.Ct. 2041 (‘‘in constru-

ing the Lanham Act, we have been ‘carefulto caution against misuse or over-exten-sion’ of trademark and related protectionsinto areas traditionally occupied by patentor copyright’’) (quoting TrafFix Devices,Inc. v. Marketing Displays, Inc., 532 U.S.23, 29, 121 S.Ct. 1255, 149 L.Ed.2d 164(2001)).

Cleary v. News Corp., 30 F.3d 1255,1261 (9th Cir.1994), does not invite an ov-erlap between the two causes of action. InCleary, the Ninth Circuit confirmed thatreverse passing off under the Lanham Actrequires bodily appropriation of misattri-buted material. See 30 F.3d at 1261. Inan effort to define the term ‘‘bodily appro-priation,’’ the Cleary court adopted thedefinition of the term that is used in thecontext of copyright law: ‘‘ ‘copying or un-authorized use of substantially the entireitem.’ ’’ Id. (quoting Harper House, Inc.v. Thomas Nelson, Inc., 889 F.2d 197, 205(9th Cir.1989)). The plaintiff in Cleary didnot allege a copyright claim, and the Courtonly assumed, for the sake of argument,that the plaintiff had successfully alleged aLanham Act claim. The Cleary court didnot suggest an overlap between causes ofaction under the Copyright Act and theLanham Act, it only held that a similardefinition of ‘‘bodily appropriation’’ couldbe used under the two statutes.

2. State Law Claims.

[15] Corbis asserts state law causes ofaction for violation of the Consumer Pro-tection Act, R.C.W. 19.86.020 et seq., andfor tortious interference with business re-lationships. Amazon argues that the statelaw claims should be dismissed becausethey are barred by the CommunicationsDecency Act of 1996 (the ‘‘CDA’’), 47U.S.C. § 230, and because they arepreempted by the Copyright Act. Becausethis Court finds that the claims are barred


by the CDA, it need not address whetherthey are preempted by the Copyright Act.

Section 230 of the CDA states, in part,that ‘‘[n]o provider or user of an interac-tive computer service shall be treated asthe publisher or speaker of any informa-tion provided by another information con-tent provider.’’ 47 U.S.C. § 230(c)(1). Inaddition, the CDA preempts any inconsis-tent state or local law. See 47 U.S.C.§ 230(e)(3). As a result, the CDA ‘‘createsa federal immunity to any cause of actionthat would make service providers liablefor information originating with a third-party user of the service.’’ Zeran v.America Online, Inc., 129 F.3d 327, 330(4th Cir.1997), cert. denied, 524 U.S. 937,118 S.Ct. 2341, 141 L.Ed.2d 712 (1998).

Immunity from state law claims under§ 230 requires that: (1) defendant be aservice provider or user of an interactivecomputer service; (2) the cause of actiontreat a defendant as a publisher or speakerof information; and (3) a different informa-tion content provider provided the infor-mation. See 47 U.S.C. § 230(c)(1). Corbisdoes not contest that Amazon meets thefirst two elements of § 230 immunity.Corbis does assert, however, that Amazonfails to satisfy the last element. Corbisargues that Amazon ‘‘shaped the contentof what was offered for sale on its zShopsand directly provided the unauthorized im-ages displayed on its IMDb.com platform.’’Pl.’s Opp. to Def.’s Trademark and StateLaw Mot. at 14.

Section 230(c) ‘‘provides broad immuni-ty for publishing content provided primar-ily by third parties.’’ Carafano v. Metros-plash.Com, Inc., 339 F.3d 1119, 1123 (9thCir.2003). ‘‘[S]o long as a third partywillingly provides the essential published

content, the interactive service providerreceives full immunity regardless of thespecific editing or selection process.’’ Id.Here, it is undisputed that the zShopsvendors provided the images that weredisplayed on the zShops sites. AlthoughAmazon may have encouraged third par-ties to use the zShops platform and pro-vided tools to assist them, that does notdisqualify it from immunity under § 230because the zShops vendor ultimately de-cided what information to put on its site.See id. at 1124 (§ 230 immunity grantedwhere ‘‘the selection of the content wasleft exclusively to the user’’ even if serviceprovider ‘‘facilitated expression of infor-mation’’).

Corbis asserts that Amazon cannotmaintain immunity with regard to imageson IMDb because ‘‘Amazon was the infor-mation content provider.’’ Pl.’s Opp. toDef.’s Trademark and State Law Mot. at13–14. Assuming this to be true, § 230‘‘precludes treatment as a publisher orspeaker for ‘any information provided byanother information content provider.’ ’’Carafano, 339 F.3d at 1125 (quoting 47U.S.C. § 230(c)(1)) (emphasis in original).Corbis’s claims are barred unless Amazon‘‘created or developed the particular infor-mation at issue.’’ Id. The evidence indi-cates that Amazon did not create or devel-op the images posted on IMDb. As Corbisitself has recognized, Amazon may havepublished the images on its IMDb site, butthose images were provided by the zShopsvendors.17

IV. CONCLUSION

For the foregoing reasons, Amazon’sMotion for Summary Judgment Under

17. Because Amazon has immunity under theCDA, the Court need not entertain Amazon’sfinal motion for summary judgment challeng-ing Corbis’s claims for damages relating tothe claim of tortious interference with busi-

ness relationships (Dkt. 105). Because theCDA prevents Corbis from asserting the tor-tious interference claim, summary judgmentis granted in Amazon’s favor and those claimsare dismissed.

1119GREEN v. TRANSPORTATION SEC. ADMIN.Cite as 351 F.Supp.2d 1119 (W.D.Wash. 2005)

the Digital Millennium Copyright Act(Dkt.# 132) is GRANTED, Corbis’s Mo-tion for Partial Summary Judgment Re-garding § 512(c) ‘‘Safe Harbor’’ Qualifica-tion under the DMCA (Dkt.# 145) isDENIED, Corbis’s Motion for PartialSummary Judgment Against AmazonPrecluding Application of DMCA forLack of Compliance with 17 U.S.C.§ 512(i) (Dkt.# 146) is DENIED, Cor-bis’s Motion for Partial Summary Judg-ment Against Amazon as to DMCA Eli-gibility for Its IMDb Platform(Dkt.# 144) is GRANTED, Amazon’s Mo-tion for Partial Summary Judgment De-nying Corbis’s Direct Copyright Infringe-ment Claims (Dkt. # 153) is GRANTED,Corbis’s Motion for Partial SummaryJudgment Against Amazon for Directand Vicarious Copyright Liability (Dkt.# 147) is DENIED, Amazon’s Motion forPartial Summary Judgment on Plaintiff’sState Law Claims (Dkt. # 132) isGRANTED, Amazon’s Motion for PartialSummary Judgment on Copyright andCopyright Misuse (Dkt. # 151) is DE-NIED, Amazon’s Motion for PartialSummary Judgment on Plaintiff’s ActualDamages (Dkt. # 163) is DENIED, andAmazon’s Motion for Partial SummaryJudgment on Plaintiff’s Claim and Dam-ages for Tortious Interference with Busi-ness Relationships (Dkt. # 105) isGRANTED.

,

Michelle D. GREEN, et al., Plaintiffs,

v.

TRANSPORTATION SECURITYADMINISTRATION, et al.,

Defendants.

No. C04–763Z.

United States District Court,W.D. Washington,

At Seattle.

Jan. 7, 2005.

Background: Innocent airline passengers,who had no links to terrorist activity buthad names similar or identical to names onTransportation Security Administration’s(TSA) no–fly list, brought action againstTSA, alleging that TSA’s actions in main-tenance, management, and disseminationof the no–fly list were unconstitutional.The TSA filed a motion to dismiss for lackof subject matter jurisdiction and a motionto dismiss for failure to state a claim.

Holdings: The District Court, Zilly, J.,held that:

(1) although TSA security directives es-tablishing a no–fly list or selectee listfor enhanced screening were ‘‘orders’’over which court of appeals had ex-clusive jurisdiction, procedures admin-istered by TSA’s Office of the Om-budsman to allow passengers withnames identical or similar to nameson the no–fly list to be cleared werenot ‘‘orders,’’ and therefore, court hadjurisdiction to consider passengers’constitutional claims relative to thoseprocedures;

(2) passengers’ due process and FourthAmendment challenges to TSA’s adop-tion, maintenance, and dissemination ofno–fly list and heightened securitymeasures, which constituted ‘‘orders’’over which court of appeals had exclu-sive jurisdiction, were inescapably in-

1090 351 federal supplement, 2d series · corbis corp. v. amazon.com, inc. 1093 cite as 351...

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