In Ellison v. Robertson, the 9th Cir. clarifies threshold issues, holding that it is up to the jury to determine if a service provider (in this case AOL) meets the eligibility requirements of 17USCsec512(i). It is apparently a triable issue of fact (at least in the 9th circuit, so far) for the jury to determine if [the Service Provider] (1) adopt[s] a policy that provides for the termination
of service access for repeat copyright infringers in appropriate
circumstances; (2) implement[s] that policy in a
reasonable manner; and (3) inform[s] its subscribers of the policy.
Indeed, the Court adds that "[T]here is ample evidence in the
record that suggests that AOL did not have an effective notification
procedure in place at the time the alleged infringing
activities were taking place."
Long and short: it may not be as easy as previously thought for a service provider to assert the safe harbor provisions in defending against a contributory copyright infringement claim.