Course No.: 9200 710 801
Course ID:  17261
Tu 6:30-9:30 p.m.
Room W-215
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008   Jay Dratler, Jr.  
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Notes and Questions on Hendrickson v. eBay, Inc.

1.  Section 512 has some "threshold conditions" that any defendant seeking its "safe harbor" must meet.  First, there are the two conditions of subsection (i), requiring the defendant to adopt, promulgate and reasonably implement a policy for terminating repeat infringers, and to accommodate and not interfere with "standard technical measures."  Second, there is the requirement of subsection (c)(2) for designating an agent to receive notification of infringement, which most, but not all, Section 512 defendants must meet.  Did eBay meet these requirements?  Did eBay's "VeRO Program" meet the requirements of subsection (i)(1)(A)?  Did it properly designate an agent for receipt of notification and let the world know of its designation?

2.  eBay sought the shelter of subsection (c) of Section 512.  Was that the most appropriate subsection for eBay's activities?  Can you articulate why or why not?  Might another subsection also apply?  Why or why not?

3.  The main issue in eBay was the adequacy of Hendrickson's notification of infringement.  Subsection (c)(3) governs that issue.  Is that subsection simple and straightforward, or does it have some difficult twists?

Subsection (c)(3) contains two lists of "elements" of notification.  The first list—the "long list"—has six elements and appears in Paragraph (A) of subsection (c)(3).  Paragraph (B)(ii) contains a shorter list—the "short list"—of three of those elements.  A notification might provide the elements on either list either completely or substantially.  What are the consequences for the defendant who receives a notification containing all six elements of information completely?  substantially?  a notification containing only the three elements on the "short list" completely?  substantially?  What must a recipient of the notification do to retain the chance of reaching the safe harbor in each case?

Did Hendrickson's notification comply with the long list completely?  substantially?  with the short list completely?  substantially?  Did eBay win summary judgment under Section 512 because Hendrickson's notices were fatally defective, because eBay responded appropriately, or both?

4.  The court rules that Hendrickson's notification was defective because, inter alia, it didn't distinguish between copies of "Manson" on DVDs, which apparently were counterfeit, and copies on VHS videocassette, at least some of which apparently were authorized.  Was the court just nit picking, or was this an important point?  Before you answer, consider the question from eBay's point of view.  What should eBay after receiving Hendrickson's notification do if it discovers a customer auctioning a copy of "Manson" in VHS format?

The court also says that, under the circumstances of this case, Hendrickson had to identify the infringing material by item number, i.e., precisely and unambiguously.  Do you agree?  Suppose Hendrickson had given the same user names that he provided, but had unambiguously (and correctly) stated that all copies of "Manson" on DVD were counterfeit but those in VHS format were authorized.  Would that notification have given eBay " information reasonably sufficient to permit [it] to locate the [infringing] material" as subsection (c)(3)(A)(iii) requires?

5.  Under subsections (c)(1)(A)(ii) and (ii), written notification is not necessary to trigger the "take down" condition for a defendant seeking the shelter of subsection (c).  It is enough if the defendant has "knowledge" or "awareness" of circumstances that amount to notice of infringement.  Even if Hendrickson's notification was defective, did it nevertheless provide that "knowledge" or "awareness"?  In answering that question, be sure to consider subsection (c)(3)(B).  Could Hendrickson argue that eBay had the requisite knowledge or awareness based upon other circumstances?

6.  As this case suggests, a prospective defendant cannot generally hope to reach the shelter of Section 512 as an afterthought in litigation.  Instead, it must have a "compliance program" for : (1) complying with the general eligibility conditions in subsection (i), (2) designating an agent for receipt of notification under subsection (c)(2), and (3) to responding "expeditiously" to knowledge, awareness and notification by "taking down" offending material.  Based on your reading of this case, how would you rate eBay's compliance program?  Was it too strong, too weak, or just right?  If you were counsel to a major ISP, what, if anything would you advise your client to do that eBay did not do, or not to do that eBay did?

7.  Without much discussion, the court rules that Section 512 shields eBay from liability not only with respect to infringing material appearing on its Website, but from secondary liability for its customers' off-line activities in exchanging infringing merchandise.  Is this obviously so?  Is there any language in the statute that suggests that it protects on-line auction houses from vicarious or contributory liability for its customers exchanging infringing merchandise with the aid of its services?

8.  The court had to delve into some of the intricacies of Section 512 in order to grant eBay summary judgment.  But resort to Section 512 is needed only when liability otherwise exists.  In the absence of Section 512, would eBay have had direct liability for copyright infringement because its customers exchange unauthorized copies of "Manson" using its services?  If not, would it have had vicarious or contributory liability?  Would it have been easier and more direct for the court to apply the federal-common-law rules of vicarious and contributory copyright infringement, or to apply all the intricacies of Section 512?

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