- a statement signed by physical signature or electronic signature under penalty of perjury
that the complaining party has the authority to enforce the rights that are claimed to be
infringed and a good faith belief that use of the material in the manner complained of is
not authorized by the copyright owner, its agent, or the law.
Section 512(c)(3)(B)(ii) provides that, if a notice complies with at least the first three of the
preceding requirements, then in order to take advantage of the safe harbor, the Service Provider
must promptly attempt to contact the complaining party or take other reasonable steps to assist in
the receipt of notification that substantially complies with all the preceding requirements for
notice.
The DMCA does not define what constitutes a “direct financial benefit” from the
infringing activity, but presumably the mere receipt of monthly subscription fees from the
infringing user would not be a “direct” financial benefit from the infringing activity.^2392 It is also
unclear what constitutes sufficient “right and ability to control” the infringing activity. Most
Service Providers impose certain rules on the users of their system, but, as a practical matter, do
not and are not able to control the myriad individual actions of users of the system. The same
phrase – “right and ability to control” – appears in the safe harbor of Section 512(d) as well,
which was asserted in the Napster case, as discussed in subsection (iv) below.
Finally, to take advantage of this safe harbor, the OSP must designate an agent to receive
notifications of claimed infringements and make available the contact information for such agent
through its service and through the U.S. Copyright Office. The specifics for designation of such
agent are set forth in subsection (7) below.
Several cases have interpreted and adjudicated the scope of the Section 512(c) safe
harbor:
a. The ALS Scan Case – What Constitutes a
“Substantially” Compliant Notice
The issue of what constitutes a “substantially” compliant notice under Section 512(c)(3)
was addressed in the case of ALS Scan, Inc. v. RemarQ Communities, Inc.^2393 In that case, the
defendant RemarQ was an OSP that provided access to its members to over 30,000 newsgroups.
RemarQ did not monitor, regulate, or censor the content of articles posted in the newsgroups, but
did have the ability to filter information contained in the newsgroups and to screen its members
(^2392) “In general, a service provider conducting a legitimate business would not be considered to receive a ‘financial
benefit directly attributable to the infringing activity’ where the infringer makes the same kind of payment as
noninfringing users of the provider’s service. Thus, receiving a one-time set-up fee and flat, periodic payments
for service from a person engaging in infringing activities would not constitute receiving a ‘financial benefit
directly attributable to the infringing activity.’ Nor is subsection (c)(1)(B) intended to cover fees based on the
length of the message (e.g., per number of bytes) or by connect time. It would however, include any such fees
where the value of the service lies in providing access to infringing material.” H.R. Rep. No. 105-551 Part 2, at
54 (1998).
(^2393) 239 F.3d 619 (4th Cir. 2001).