substantially comply with the technical notice requirements of Section 512(c). The OSP can, of
course, receive actual or constructive notice through channels other than the copyright holder,
but notice from the copyright holder must come in written form in order to trigger the OSP’s
duty to act on that information. The ALS Scan case is consistent on this point, since in the ALS
Scan case, notice from the copyright holder was in writing. Second, the copyright holder bears
the burden to identify specific instances of infringing activity on the system. It is insufficient to
identify only the users who are committing allegedly infringing acts without further
identification of the infringing materials that are the subject of those acts. Third, neither the
OSP’s mere ability to terminate infringing users or activity, or the OSP’s voluntary policing of
its system or website, will of themselves be sufficient to establish “control” of the infringing
activity for purposes of adjudicating the availability of the Section 512(c) defense.
c. CoStar v. LoopNetIn CoStar Group Inc. v. LoopNet, Inc.,^2432 the plaintiff CoStar maintained a copyrighted
commercial real estate database that included photographs. The defendant LoopNet offered a
service through which a user, usually a real estate broker, could post a listing of commercial real
estate available for lease. The user would access, fill out, and submit a form for the property
available. To include a photograph of the property, the user was required to fill out another
form. 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 a
photograph of commercial property and that there was no obvious indication the photograph was
submitted in violation of LoopNet’s terms and conditions. If the photograph met LoopNet’s
criteria, the employee would accept it and post it along with the property listing. CoStar claimed
that over 300 of its copyrighted photographs had been posted on LoopNet’s site, and sued
LoopNet for both direct and contributory copyright liability.^2433 The court entered a preliminary
injunction against LoopNet. CoStar then moved for summary judgment on LoopNet’s liability,
and LoopNet moved for summary judgment on noninfringement and its entitlement to the safe
harbor of Section 512(c).
CoStar argued that LoopNet should be directly liable for copyright infringement because,
acting through its employees’ review and subsequent posting of the photographs, LoopNet was
directly copying and distributing the photographs, citing the Frena case discussed above in
Section II.A.4(d). The court rejected this argument, noting that the Fourth Circuit in the ALS
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 liability for
postings by its users must be judged under the contributory infringement doctrine.^2434
The court then turned to an analysis of contributory infringement and the safe harbor of
Section 512(c) of the DMCA asserted by LoopNet. CoStar argued, citing the Fonovisa “swap
(^2432) 164 F. Supp. 2d 688 (D. Md. 2001), aff’d, 373 F.3d 544 (4th Cir. 2004).
(^2433) Id. at 691-92.
(^2434) Id. at 695-96.