Page:Perfect 10, Inc. v. Amazon.com, Inc..pdf/32

analysis because it failed to consider whether Google and Amazon.com knew of infringing activities yet failed to take reasonable and feasible steps to refrain from providing access to infringing images. Therefore we must also reverse the district court’s holding that Perfect 10 was unlikely to succeed on the merits of its secondary liability claims. Due to this error, the district court did not consider whether Google and Amazon.com are entitled to the limitations on liability set forth in title II of the DMCA. The question whether Google and Amazon.com are secondarily liable, and whether they can limit that liability pursuant to title II of the DMCA, raise fact-intensive inquiries, potentially requiring further fact finding, and thus can best be resolved by the district court on remand. We therefore remand this matter to the district court for further proceedings consistent with this decision.

Because the district court will need to reconsider the appropriate scope of injunctive relief after addressing these secondary liability issues, we do not address the parties’ arguments regarding the scope of the injunction issued by the district court. For the same reason, we do not address the parties’ dispute over whether the district court abused its discretion in determining that Perfect 10 satisfied the irreparable harm element of a preliminary injunction.

Therefore, we reverse the district court’s ruling and vacate the preliminary injunction regarding Google’s use of thumbnail versions of Perfect 10’s images.^[1] We reverse the district court’s rejection of the claims that Google and Amazon.com are secondarily liable for infringement of Perfect 10’s full-size images. We otherwise affirm the rulings of the district court. We remand this matter for further proceedings consistent with this opinion. Each party shall bear its own costs on appeal. See FED. R. APP. P. 39(a)(4).

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

J & J CELCOM; Lupe Azevedo; Woodrow W. Holmes, Jr.; Lucille Hoss; Daniel Murray; Rajive Oberoi; Kenneth L. Ramsey; Gary R. Robbins; Joanne Robbins; S & D Partnership; Cell-Cal IX-T9; Nancy Donnelly; Rodger D. Friz; Sid Danny Hoff; Om Parkash Kalra; Ronald Wilson; Delchi Corporation, Plaintiffs–Appellants,

v.

AT & T WIRELESS SERVICES, INC.; McCaw Cellular Interests Inc.; AT & T Wireless Services of Colorado LLC; AT & T Wireless Services of Idaho Inc; AT & T Wireless Services of Washington LLC; Boise City Cellular Partnership, formerly known as New Boise City Cellular Partnership; Fort Collins–Loveland Cellular Telephone Co., formerly known as New Fort Collins–Loveland Cellular Telephone Company; Greeley Cellular Co., formerly known as New Greeley Cellular Company; Yakima Cellular Telephone Company, formerly known as New Yakima Cellular Telephone Company; McCaw Communications of Wheeling, Inc.; McCaw Communications of Texarkana, Inc; AT & T Wireless Services of California, Defendants–Appellees.

1. Because we vacate the injunction, Google’s motion for stay of the injunction is moot.