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Porn distribution company loses piracy suit appeal against Web host [arstechnica.com]:

A federal appeals court has upheld a ruling that site hosts are not liable for copyright infringement committed by the sites they host, so long as they take the "simple measures" of forwarding claims to the site owner.

The ruling follows a legal battle between adult content company ALS Scan and site hosting service Steadfast. The Ninth Circuit Court of Appeals ruled 2 to 1 on Friday (PDF [arstechnica.net]) that even though ALS has a "whack-a-mole problem" with pirated content popping up on Imagebam, a site Steadfast hosts, the host did its part to prevent the piracy.

Working as intended

A copyright owner, such as ALS, can file a claim against a site, such as Imagebam, that is unlawfully sharing its copyrighted content. That often means sending notice to the site host—the entity you'd find listed in a whois search—about it. The host, in this case Steadfast, is then required to forward the notice along to the site owner and check that the site owner does in fact take the content down.

ALS several times sent notices to Steadfast about Imagebam sharing infringing content. Steadfast each time forwarded the notices to Imagebam, and each time, Imagebam took down the images specified in the claim. The system worked exactly as it is designed to.

In 2016, ALS apparently got fed up with the sheer volume of takedown requests it was sending and filed suit against several Web hosts, including Steadfast. A California judge in 2018 dismissed the claims [torrentfreak.com] against the hosts. Although a business can be held liable for pirate sites it hosts, the judge determined Steadfast had met the required "simple measures" threshold to avoid being responsible for "contributory copyright infringement," because it forwarded the notices and checked for compliance.

"We already check and assure the content is removed, and yes, if the content simply stays up, that is concerning and shows that more could be done," Steadfast CEO Karl Zimmerman told TorrentFreak [torrentfreak.com] in 2018. "We took action in forwarding the complaints, tracking those complaints, and validating the content had been removed. We did what was required of us, which is why I thought it was odd we were in this case in the first place."

Whack-a-Mole

Imagebam apparently hosted a lot of ALS' content over time, and ALS in turn sent a whole lot of infringement notices to Steadfast. But "the number of notices is legally irrelevant," the Ninth Circuit holds. "The number of notices that Steadfast previously received gives at most a general knowledge that infringement will likely occur in the future; this does not give notice of any specific acts of infringement that are actually occurring."

Steadfast, in other words, does not have to predict the future based on the past and instead only needs to respond to actual reported instances of infringement that take place.

"We are sympathetic to ALS's 'whack-a-mole problem,'" the majority said, but Steadfast did what was required of it—and, reasonably, could not have actually done more, adding:

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. It had no way of knowing, based on a URL hyperlink contained in the notices of copyright infringement, where the infringing works or the Imagebam accounts responsible for illegal uploads were located.

Circuit Court Judge Richard Clifton dissented with the majority ruling. "It was necessarily apparent to Steadfast that copyright infringements would almost certainly continue, given the history alleged," Clifton wrote. "Hundreds of repeat infringements were reported... Steadfast did not contend (let alone present any evidence to support a conclusion) that the 'simple measures' it took did, in fact, 'prevent future damage to copyrighted works.'"

"The majority appears to accept that copyright law is powerless to address the whack-a-mole problem, but it should not be," Clifton added. "I do not view the law to be so feeble."

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