§ 512,[1] and from liability for state law unfair competition, false advertising claims and right of publicity based on Section 230 of the Communications Decency Act, 47 U.S.C.

The defendant CCBill provide payment services that let consumers use credit cards or checks to pay e-commerce venues.

On September 30, 2002, P10 filed lawsuit against the defendants alleging copyright and trademark violations, state law violation of right of publicity laws, unfair competition, false and misleading advertising, and Racketeer Influenced and Corrupt Organizations Act (RICO) claims, because the defendants provided services to websites that posted stolen images from P10's magazine and website.

In favor of CCBill and CWIE, based on the Digital Millennium Copyright Act (DMCA), the district court found that CCBill and CWIE qualified for certain statutory safe harbors from copyright infringement liability, and they are also immune from liability for state law unfair competition and false advertising claims under the Communications Decency Act (CDA).

[1] One such condition requires the service provider to adopt and reasonably implement a policy that will terminate users who are repeat infringers in appropriate circumstances.

An implementation is reasonable if, under "appropriate circumstances," the service provider terminates users who repeatedly or blatantly infringe copyright.

P10 referenced a single page from CCBill and CWIE's "DMCA Log," and showed some missing webmaster names in the spreadsheet.

The Ninth Circuit upheld the district court's finding that P10 had not proved CCBill's and CWIE's failure to implement a repeat infringer policy.

Although P10 claimed that it met the requirements through a combination of sets of documents that it sent to CCBill and CWIE on three different occasions, both the district court and the Ninth Circuit found that service providers could not be expected to piece together information from separate notices.

The Ninth Circuit disagreed with the district court in declining to consider evidence of notices and "red flags" raised by third parties other than P10.

The Ninth Circuit found they are relevant and remanded to the district court the determination of whether CCBill and/or CWIE responded to notices appropriately and implemented its repeat infringer policy in an unreasonable manner in other cases.

According to the defendants, P10's method of identifying infringement involved reversing previous charges for subscriptions, which imposed a substantial cost for CCBill.

"[1] The court agrees that the credit card information and proof of payment transmitted by CCBill are "digital online communications."

The fact that CWIE hosted sites for a fee unrelated to the amount of infringing material, and P10 failed to provide sound evidence about such benefit, which led the court to decide CWIE did meet the requirements of § 512(c), which limits liability for claims of infringement for storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.