Advanced Copyright Issues on the Internet - Fenwick & West LLP

were brought against MP3.com as well. For example, in Sept. of 2001, Isaac, Taylor & ZacharyHanson also sued MP3.com for copying of their copyrighted songs on My.MP3.com. 128Numerous opinions have been issued as a result of these lawsuits, holding MP3.comliable for willful copyright infringement and ruling it collaterally estopped from denying that itwillfully infringed the plaintiffs’ various copyrighted works when it created the “server copies”of thousands of CDs in late 1999 and early 2000. 129(i)The CoStar CaseIn CoStar Group Inc. v. LoopNet, Inc., 130 the plaintiff CoStar maintained a copyrightedcommercial real estate database that included photographs. The defendant LoopNet offered aservice through which a user, usually a real estate broker, could post a listing of commercial realestate available for lease. The user would access, fill out, and submit a form for the propertyavailable. To include a photograph of the property, the user was required to fill out anotherform. The photograph would initially be uploaded into a separate folder on LoopNet’s system,where it would first be reviewed by a LoopNet employee to determine that it was in fact aphotograph of commercial property and that there was no obvious indication the photograph wassubmitted in violation of LoopNet’s terms and conditions. If the photograph met LoopNet’scriteria, the employee would accept it and post it along with the property listing. CoStar claimedthat over 300 of its copyrighted photographs had been posted on LoopNet’s site, and suedLoopNet for both direct and contributory copyright liability. 131CoStar argued that LoopNet should be directly liable for copyright infringement because,acting through its employees’ review and subsequent posting of the photographs, LoopNet wasdirectly copying and distributing the photographs, citing the Frena case discussed above inSection II.A.4(d). The district court rejected this argument, noting that the Fourth Circuit in theALS Scan case had concluded that the legislative history of the DMCA indicated Congress’intent to overrule the Frena case and to follow the Netcom case, under which an OSP’s liabilityfor postings by its users must be judged under the contributory infringement doctrine. 132The Fourth Circuit affirmed this ruling on appeal. 133 Citing its own decision in the ALSScan case, the Fourth Circuit noted that it had already held that the copyright statute implies arequirement of volition or causation, as evidenced by specific conduct by the purported infringer,128129130131132133Steven Bonisteel, “Hanson Sues Music Locker Service Over <strong>Copyright</strong>” (Sept. 26, 2001), available as of Jan. 6,2002 at www.newsbytes.com/news/01/170530.html.See, e.g., Country Road Music, Inc. v. MP3.com, Inc., 279 F.Supp.2d 325 (S.D.N.Y. 2003); Zomba Enters.,Inc. MP3.com, Inc., No. 00 Civ. 6833 (S.D.N.Y. Jun. 8, 2001); Teevee Toons, Inc. v. MP3.com, Inc., 134 F.Supp. 2d 546 (S.D.N.Y. 2001); UMG Recordings, Inc. v. MP3.com, Inc., No. 00 Civ. 472, 200 WL 1262568(S.D.N.Y. 2000).164 F. Supp. 2d 688 (D. Md. 2001).Id. at 691-92.Id. at 695-96.CoStar v. LoopNet, 373 F.3d 544 (4 th Cir. 2004).- 41 -