“Simple measures” to avoid contributory copyright infringement

Whether a data-center service provider has taken adequate “simple measures” to avoid contributory copyright infringement if it forwarded notices of such infringement to the hosting website – and every alleged infringed material was taken down.

Imagebam.com is a website that hosts user-uploaded content. That website has allegedly become an unauthorized hub of copyrighted adult material, some of which was created by ALS Scan, Inc, the plaintiff in the case. ALS sued Steadfast, a data-center service provider that leases servers to its many customers, including Imagebam’s owner, so that they can host data on the Internet.

ALS sent multiple notices of copyright infringement to Steadfast about the images on Imagebam. Whenever it received such a notice, Steadfast forwarded it to the designated agent for Imagebam. Every copyrighted image at issue was then removed by Imagebam.

The appeal has held that a party may avoid liability for contributory copyright infringement if it takes “simple measures” to “prevent further damage to copyrighted works.” In this case, Steadfast took those “simple measures” by forwarding ALS’s notices of infringement to the owners of Imagebam. There is no dispute that the owner of Imagebam took down all the infringed materials.

ALS disputed whether Steadfast in fact took any actions in response to its notices, but it failed to point to any evidence creating a genuine dispute of fact. ALS complained that it is not enough to forward the infringement notices to Imagebam’s owner in light of the number of infringement notices that Steadfast has received. But the number of notices is legally irrelevant.

Steadfast forwarded each notice to Imagebam’s owner, and every infringing work was taken down. Nor is there evidence that Steadfast had any other simple measures at its disposal. Steadfast did not operate, control, or manage any functions of Imagebam.com. It could not supervise, access, locate, or delete Imagebam accounts.

What measures were available to prevent further damage to ALS’s copyrighted images, Steadfast took. Further, ALS apparently has not pursued other options that may ameliorate the “whack-a-mole” problem (e.g., taking action against Imagebam’s owner or the individuals uploading the unauthorized images).

Steadfast is also not liable for contributory trademark infringement. Steadfast can only be liable for contributory trademark infringement if it had “direct control and monitoring of the instrumentality used by the third party to infringe” the marks at issue. The majority therefore affirmed the district court’s entry of summary judgment in favor of Steadfast.