Advanced Copyright Issues on the Internet - Fenwick & West LLP

Because RemarQ had received adequate notice of infringement and had failed to act toremove the infringing material, it was not entitled to the safe harbor of the DMCA. 1800 TheFourth Circuit observed that the immunity of the DMCA “is not presumptive, but granted only to‘innocent’ service providers who can prove they do not have actual or constructive knowledge ofthe infringement, as defined under any of the three prongs of 17 U.S.C. § 512(c)(1). TheDMCA’s protection of an innocent service provider disappears at the moment the serviceprovider loses its innocence; i.e., at the moment it becomes aware that a third party is using itssystem to infringe. At that point, the Act shifts responsibility to the service provider to disablethe infringing material ….” 1801 The Fourth Circuit remanded the case for further proceedings onALS Scan’s copyright infringement claims and any other affirmative defenses that RemarQmight have. 1802There are a few lessons to be learned from the ALS Scan case. First, where multiplecopyrighted works are allegedly infringed, a copyright holder need not specifically identify allparticular instances of infringing material at the site in order to give adequate notice to theService Provider sufficient to give rise to a duty on its part to act in order to preserve the DMCAsafe harbors. Second, at least in the specific factual scenario where all the allegedly infringingmaterial is contained in a single area such as a newsgroup, and the area comprises almost allinfringing material, the Service Provider may need to remove or block access to the entire areaas a precaution to preserve the safe harbor. It might have been sufficient for RemarQ to haveremoved or blocked access only to those photos within the newsgroups that bore ALS Scan’sname or copyright notice (the opinion does not address this question) – but even if so, it appearsthat the Fourth Circuit may have contemplated that RemarQ, and not ALS Scan, would bear theburden of identifying the individual photos for removal or blocking access to. Third, thedecision suggests that a Service Provider may not be wise to rely on certain failures on the partof a copyright holder to comply with all the technical notice requirements of Section 512(c)(3) asa basis for not having to act to remove or block allegedly infringing material. If a court laterdetermines that the notice was “substantially” compliant, the Service Provider may have lost itsDMCA safe harbor by failing to act.In sum, the ALS Scan case reflected a rather low threshold of knowledge of infringingactivity, at least under the specific facts of the case, and a rather lax application of the technicalnotice requirements of Section 512(c). The net effect of these rulings was to make the Section512(c) safe harbor rather fragile for the OSP. Subsequent cases have given the Section 512(c)safe harbor a stronger reading in favor of the OSP and have insisted on a stricter compliancewith the technical notice requirements on the part of the copyright holder:b. Hendrickson v. eBay. In Hendrickson v. eBayInc., 1803 the plaintiff Hendrickson, a pro se plaintiff, sought to hold defendant eBay Inc.secondarily liable for the sale through the eBay auction site of allegedly infringing copies of the1800 Id. at 625-26.1801 Id. at 625.1802 Id. at 626.1803 165 F. Supp. 2d 1082 (C.D. Cal. 2001).- 393 -