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Service provider liable for copyright infringement of photos

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    NMU         FOURTH CIRCUIT         Copyrights & Trademarks         Feb 8, 2001    

Service provider liable for copyright infringement of photos

  • The Fourth Circuit is first to interpret the “notice and takedown” provisions of the Digital Millennium Copyright Act.

An Internet service provider was liable for the copyright infringement by users even though the copyright holder gave incomplete notice of the infringing materials to the ISP, a three-judge panel of the U.S. Court of Appeals in Baltimore (4th Cir.) held on Feb. 6.

The case was the first to interpret a requirement in the federal Digital Millennium Copyright Act (DMCA) that Internet service providers (ISPs) remove material from their systems once the copyright holders give them notice of the infringement, or lose a “safe harbor” privilege the statute provides to avoid liability.

The case turned on how specific a plaintiff copyright holder’s notice to an ISP needs to be to force the ISP to remove the material. The answer, the Fourth Circuit said, was not very.

Critics contend that the decision could force ISPs to police their systems more carefully and lead to sweeping removals by ISPs of material, including content that does not infringe any copyright.

ALS Scan, an adult photograph company, sued RemarQ Communities in 1999 for infringement of its copyrighted images. RemarQ provides access to Internet newsgroups, which function as a storehouse of information for users, including two called “alt.als” and “” These newsgroups — named after ALS Scan — contained hundreds of ALS’s copyrighted images.

When it discovered the infringement, ALS Scan sent RemarQ a letter demanding it shut down the newsgroups, but failed to identify the offending material. RemarQ promised to remove any specifically identified material, but did not shut down the newsgroups. In subsequent communications, ALS Scan did not specify which images were infringing.

ALS Scan sued RemarQ under the DMCA. ALS Scan claimed that the notice RemarQ received was sufficient to put it on notice of the offending material. RemarQ moved for dismissal, claiming the notice it got from ALS was insufficient. The trial court agreed and dismissed the case against RemarQ.

The appellate court determined that RemarQ could be held liable for the infringement under the DMCA, despite the “safe harbor” provision that allows ISPs to escape liability for infringements on their systems if they meet certain requirements. By removing any material after receiving notice of its alleged infringement, a practice called “notice-takedown,” an ISP can avoid a claim of copyright infringement.

The statute’s notice requirement was met by ALS’s specific identification of the

offending newsgroups and its assertion that nearly all of the images therein were infringing, the panel ruled. The court was unpersuaded by RemarQ’s argument that the copyright holder had to identify each and every infringing work.

“In the spirit of achieving a balance between the responsibilities of the service provider and the copyright owner, the DMCA requires that a copyright owner put the service provider on notice in a detailed manner but allows notice by means that comport with the prescribed format only ‘substantially,’ rather than perfectly,” Judge Paul Niemeyer wrote in the court’s opinion.

Such an expansive view of what constitutes notice will likely force ISPs to be more vigilant about the content of their systems.

“People are concerned that this may require ISPs to do a lot of policing of their sites, when Congress put that burden on the copyright owner when it passed the DMCA,” Robert R. Vieth, counsel for RemarQ, said.

The decision will also likely have an incidental effect on free speech. In its brief to the court, RemarQ argued, “By requiring ALS Scan to identify the specific infringing articles, RemarQ can remove the infringing articles while at the same time maintain the noninfringing articles in the newsgroups. Were the law otherwise, a few infringing articles in a single newsgroup would require the elimination of the entire discussion forum in violation of the First Amendment.”

“Make no mistake about it, there are postings in this newsgroup that are not protected by the plaintiff’s copyright,” Vieth said. “If you take down the whole newsgroup, you’re cutting off future speech.”

“It is (an) expansive (view of notice), but I think what tips the scales for the Fourth Circuit was that these newsgroups — even by their very name — were designed exclusively to carry infringing materials,” said Eric Easton, a law professor at the University of Baltimore.

Easton said the court’s ruling fits in with the “notice-takedown” requirement in the statute, but that the rule itself makes it too easy for copyright holders to force ISPs to remove materials.

“I would rather see some kind of showing that goes beyond mere notice or perhaps notice triggering an investigative period rather than ‘notice, takedown, then investigation,'” he said.

(ALS Scan, Inc. v. RemarQ Communities, Inc.; Counsel: ALS – Harry B. Siegel, Columbia, Md.; RemarQ – Robert R. Vieth, Robert T. Cahill, Reston, Va.) DB

© 2001 The Reporters Committee for Freedom of the Press

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