Advanced Copyright Issues on the Internet - Fenwick & West LLP

process, not a selection process. The court also held that the mere ability to remove or blockaccess to materials could not mean that those materials were not stored at the user’s discretion.Noting that Section 512 mandates a “take down” procedure to qualify for the Section 512(c) safeharbor, the court held that it would be internally illogical if the statute were construed to meanthat in order to get into the safe harbor, an OSP needed to lack control to remove or blockaccess. 1841Knowledge for Purposes of the Safe Harbor. Turning to the issue of knowledge, thecourt noted that three types of knowledge could take a service provider outside the safe harbor:(i) actual knowledge; (2) awareness of facts raising a “red flag” that its users are infringing; and(iii) notification from the copyright holder in compliance with the technical notice requirementsof Section 512(c)(3). The court noted that a service provider does not automatically lose the safeharbor upon receiving notice, but the DMCA shifts responsibility to the service provider todisable the infringing material. 1842 Specifically, “[i]f the service provider has actual knowledgeunder § 512(c)(1)(A)(i) or ‘red flag’ knowledge under § 512(c)(1)(A)(ii), the ‘take down’provisions of § 512(c)(1)(A)(iii) must be met to stay in the safe harbor. Alternatively, if itreceives notification of claimed infringement in accordance with § 512(c)(3), the ‘take down’provisions of § 512(c)(1)(C) must be met.” 1843Because LoopNet had not challenged the adequacy of notification it had received fromCoStar, the court turned to the adequacy of LoopNet’s removal policy. The court noted thatLoopNet had two responsibilities after receipt of notice from the copyright holder: 1844 First,under Section 512(c)(1)(C), it must respond “expeditiously to remove, or disable access to, thematerial that is claimed to be infringing or to be the subject of infringing activity.” Second,under Section 512(i)(1)(A), it must adopt and reasonably implement, and inform subscribers of,a policy “that provides for the termination in appropriate circumstances of subscribers andaccount holders of the service provider’s system or network who are repeat infringers.”The court ruled that factual issues on each of these two issues precluded summaryjudgment: CoStar claimed that LoopNet had failed to remove several photographs after beingnotified that they were infringing and that several photographs had been posted more than onceafter notification. CoStar also alleged that there was no evidence LoopNet had ever terminatedany user’s access despite the fact that some of them had an extensive history as repeatinfringers. 1845 LoopNet countered that its “Terms and Conditions” for its site included theremoval of listings alleged to be infringing and the possibility of termination. LoopNet alsoclaimed that it promptly removed photographs once it received notice of alleged infringement,sent an email to brokers explaining the potential consequences of repeat infringement andinvestigated brokers it suspected to be repeat infringers. It also claimed to have implementedadditional precautions to avoid reposting of infringing photographs in the future. In addition, the1841 Id. at 701-02.1842 Id. at 702.1843 Id. at 702 n. 8.1844 Id. at 703.1845 Id.- 400 -