were brought against MP3.com as well. For example, in Sept. of 2001, Isaac, Taylor & Zachary
Hanson also sued MP3.com for copying of their copyrighted songs on My.MP3.com.^132
Numerous opinions have been issued as a result of these lawsuits, holding MP3.com
liable for willful copyright infringement and ruling it collaterally estopped from denying that it
willfully infringed the plaintiffs’ various copyrighted works when it created the “server copies”
of thousands of CDs in late 1999 and early 2000.^133
(i) The CoStar CaseIn CoStar Group Inc. v. LoopNet, Inc.,^134 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.^135
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 district 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.^136
The Fourth Circuit affirmed this ruling on appeal.^137 Citing its own decision in the ALS
Scan case, the Fourth Circuit noted that it had already held that the copyright statute implies a
requirement of volition or causation, as evidenced by specific conduct by the purported infringer,
(^132) Steven Bonisteel, “Hanson Sues Music Locker Service Over Copyright” (Sept. 26, 2001), available as of Jan. 6,
2002 at http://www.newsbytes.com/news/01/170530.html.
(^133) 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).
(^134) 164 F. Supp. 2d 688 (D. Md. 2001).
(^135) Id. at 691-92.
(^136) Id. at 695-96.
(^137) CoStar v. LoopNet, 373 F.3d 544 (4th Cir. 2004).