Advanced Copyright Issues on the Internet - Fenwick & West LLP

sufficient detail to enable RemarQ to locate and disable them (per Section 512(c)(3)(A)(ii) &(iii)). 1795 The Fourth Circuit disagreed, noting that under Section 512(c)(3)(A), a notice needcomply with the prescribed format only “substantially,” and under Section 512(c)(3)(A)(ii), acopyright holder need only provide a “representative” list of infringed works on the site. 1796 Thecourt stated: “This subsection specifying the requirements of a notification does not seek toburden copyright holders with the responsibility of identifying every infringing work – or evenmost of them – when multiple copyrights are involved. Instead, the requirements are written soas to reduce the burden of holders of multiple copyrights who face extensive infringement oftheir works. Thus, when a letter provides notice equivalent to a list of representative works thatcan be easily identified by the service provider, the notice substantially complies with thenotification requirements.” 1797The Fourth Circuit found that on the particular facts of the case, ALS Scan’s noticeconstituted an adequate representative list of infringed works and substantially complied with theDMCA notice requirements:In this case, ALS Scan provided RemarQ with information that (1) identified twosites created for the sole purpose of publishing ALS Scan’s copyrighted works,(2) asserted that virtually all the images at the two sites were its copyrightedmaterial, and (3) referred RemarQ to two web addresses where RemarQ couldfind pictures of ALS Scan’s models 1798 and obtain ALS Scan’s copyrightinformation. In addition, it noted that material at the site could be identified asALS Scan’s material because the material included ALS Scan’s ‘name and/orcopyright symbol next to it.’ We believe that with this information, ALS Scansubstantially complied with the notification requirement of providing arepresentative list of infringing material as well as information reasonablysufficient to enable RemarQ to locate the infringing material. 17991795 Id. at 621.1796 Id. at 625.1797 Id.1798 It is curious that the Fourth Circuit found the supplied Web address where RemarQ could find pictures of ALSScan’s models to aid ALS Scan’s argument that RemarQ had adequate notice of what particular infringingphotographs were contained on RemarQ’s site. The referenced Web address contained adult “teaser” photos ofthe ALS Scan models. There is nothing in the opinion of the court indicating that the “teaser” photos were theactual ones allegedly on the RemarQ site. Rather, the argument seems to be that the “teaser” photos wouldidentify what the ALS Scan models looked like. Is the Fourth Circuit implying that RemarQ then bore theburden to go look at the photos on the newsgroups at issue to see if they contained pictures of the same humansas those in the “teaser” photos? Perhaps the truly key facts were that the infringing photos in the newsgroupswere identified with ALS Scan’s name and/or copyright notice and they were all contained in one “place” –namely, a couple of particular newsgroups almost entirely devoted to ALS Scan photos.1799 Id.- 392 -