165 F. Supp. 2d 1082 - Hendrickson v. eBay, Inc.’s Empirical Analysis

Citation profile

3 federal appellate · 1 district ·

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 22 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “ISPs that do receive a financial benefit directly attributable to the infringing activity and that wish to avail themselves of subsection (c)’s safe harbor are required by 512(c)(1)(C) to delete or block access to infringing material. Yet in taking such action they would, in Plaintiffs analysis, be admitting that they have the “right and ability to control” infringing activity, which under 512(c)(1)(B) would prevent them from qualifying for the subsection (c) safe harbor. It is conceivable that Congress intended that ISPs which receive a financial benefit directly attributable to the infringing activity would not, under any circumstances, be able to qualify for the subsection (c) safe harbor. But if that was indeed their intention, it would have been far simpler and much more straightforward to simply say as much. The Court does not accept that Congress would express its desire to do so by creating a confusing, self-contradictory catch-22 situation that pits 512(c)(1)(B) and 512(c)(1)(C) directly at odds with one another, particularly when there is a much simpler explanation: the DMCA requires more than the mere ability to delete and block access to infringing material after that material has been posted in order for the ISP to be said to have “the right and ability to control such activity.””

   1 later decision quote this exact passage · from the majority
   e.g. 665 F. Supp. 2d 1099 - UMG Recordings, Inc. v. Veoh Networks Inc.

2. “[u]nlike a traditional auction house, eBay is not actively involved in the listing, bidding, sale and delivery of any item offered for sale on its website. eBay's evidence shows that it does not have any control over the allegedly infringing items-the pirated films. The evidence also shows that eBay never has possession of, or opportunity to inspect, such items because such items are only in the possession of the seller. When auctions end, eBay's system automatically sends an email to the high bidder and the seller identifying each other as such. After that, all arrangements to consummate the transaction are made directly between the buyer and seller. eBay has no involvement in the final exchange and generally has no knowledge whether a sale is actually completed ( i.e., whether payment exchanges hands and the goods are delivered). If an item is sold, it passes directly from the seller to the buyer without eBay's involvement. eBay makes money through the collection of an "insertion fee" for each listing and a "final value fee" based on a percentage of the highest bid amount at the end of the auction.”

   1 later decision quote this exact passage · from the majority
   e.g. H-D U.S.A., LLC v. SunFrog, LLC

3. “The DMCA specifically requires a service provider to remove or block access to materials posted on its system when it receives notice of claimed infringement. The DMCA also provides that the limitations on liability only apply to a service provider that has adopted and reasonably implemented ... a policy that provides for the termination in appropriate circumstances of [users] of the service provider’s system or network who are repeat infringers. Congress could not have intended for courts to hold that a service provider loses immunity under the safe harbor provision of the DMCA because it engages in acts that are specifically required by the DMCA.”

   1 later decision quote this exact passage · from the majority
   e.g. Io Group, Inc. v. Veoh Networks, Inc.