hermes canada, hermes belt, hermes birkin 32m Louis Vuitton Judgment Shows Limits Of Isp Safe Harbors
$32M Louis Vuitton judgment shows limits of hermes kelly bag ISP safe harbors
Louis Vuitton sued two ISPs in federal court, charging that they had waived their immunity from lawsuits by knowingly hosting sites hawking Louis Vuitton knockoffs. Mostly. There are limits, and Louis vitton found them this week in a federal court. The luxury goods maker won $32 million from two ISPs and the hermes belt man who ran them after proving to a jury that the ISPs had full knowledge that they hosted mainly websites for counterfeit goods""and refused to take action.
The two ISPs are Akanoc and Managed Solutions Group, both run out of Fremont, California by one Steven Chen.
Lawyers from Vuitton notified the two ISPs of the many counterfeit sites, but received no response. Further investigation found that "most, if not all of the websites hosted by the ISP defendants are engaged in the trafficking of counterfeit merchandise."
A harbor's limits
So Louis Vuitton 09 New Arrivals Bags aimed to cut off the head of the snake, going after the ISPs in court. Predictably, the ISP responses cited the DMCA's safe harbor provisions, hermes birkin but the law is clear: ISPs can't enjoy immunity for illegal activity that they knew was taking place. As spelled out in the DMCA, ISPs are immune from liability only if they meet the following criteria:
(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
After a trial in northern California last week, the jury found Chen and his two hermes belt price ISPs liable for aiding the infringement of Replica Louis Vuitton Cosmetic Pouch trademarks. They awarded $31.5 million in damages and an additional $900,000 for another offense.
At least the jurors could eat well while deliberating the case; a note in the official court docket orders the Jury Commissioner to "furnish morning refreshments and lunch in the above entitled matter at the expense of the United States District Court through Le Boulanger for the members of the jury during deliberations."
The ruling could still be appealed, but it hermes canada sends a message that juries are willing to find ISPs liable for aiding infringement, DMCA or no. While the principle of not being able to profit from knowledge of infringement is a good one, the devil is in the details.
What does it do? If it fails to shut down the site, will courts conclude that it had "knowledge" of the infringing activity? But if just starts shuttering sites based on complaints from rightsholder, it finds itself in the very situation that hermes purses the DMCA was designed to shield it from.
Update: As several readers point out, the question of "knowing about infringement" is one that the DMCA's counternotice provision was designed to addressISPs must act on takedown notices, but the targets of those notices can object, at which point the ISP can put the site back up and has done its duty. Further activity must take in place in court, and must be directly between the rightsholder and the website. Apologies for inadvertently leaving this off the end of the post.
The point that I was trying to make concerned the details of how this works in practice. As we've seen numerous times with things like YouTube videos, the DMCA takedown provisions can be used to shut up a dissenting voice, even if it's only for a short period of time and even if there's no intention of pursuing a claim in court. If done in bad faith, this is illegal, but it generates few cases unless a group like the EFF gets involved.
The problem is only magnified when business websites rather than YouTube videos are affected, and it's one reason that some other countries have adopted a "notice and notice" system (the ISP passes the infringement notice along to the target) instead of a "notice and takedown" provision..