9th Cir. Model Jury Instr. (Civil) 17.33

The defendant [name] contends that the defendant [name] is a service provider and therefore not liable for copyright infringement because the infringement occurred in the context of the defendant [name]’s provision of information location tools, such as a directory, index, reference, pointer, or hypertext link, to refer or link users to infringing material or activity. The defendant [name] has the burden of proving this defense by a preponderance of the evidence.

The defendant [name] is eligible to use this defense if the defendant [name]:

First, is a service provider of network communication services, online services, or network access;

Second, adopted, reasonably implemented, and informed users of a policy to terminate users who are repeat copyright infringers;

Third, accommodated and did not interfere with standard technical measures used to identify or protect copyrighted works;

Fourth, designated an agent to receive notifications of claimed infringement, and made the agent’s name, phone number, and email address available on its website and to the Copyright Office; and

Fifth, is facing liability for copyright infringement for providing information location tools or services.

The defense applies if the defendant [name]:

First, lacked actual knowledge that the material or activity was infringing;

Second, was either (a) not aware of facts or circumstances from which specific infringing activity was apparent, or (b) upon obtaining knowledge or awareness or upon receiving a valid notification of claimed infringement, acted expeditiously to remove or disable access to the material; and

Third, while having the right and ability to control the infringing activity, did not receive a financial benefit directly attributable to the infringing activity.

If you find that the defendant [name] has satisfied these requirements, your verdict should be for the defendant [name]. If, on the other hand, you find that the defendant [name] has failed to prove any of these elements, the defendant [name] is not entitled to prevail on this affirmative defense but may assert other defenses.