from logging onto certain newsgroups, such as those containing pornographic material.^2394 The
plaintiff ALS Scan, Inc. (ALS Scan) was in the business of creating and marketing “adult”
photographs. The plaintiff discovered that two newsgroups on the RemarQ service – both of
which had “als” in their titles (alt.als and alt.binaries.pictures.erotica.als) – contained virtually
nothing other than unauthorized photographs owned by ALS Scan. ALS Scan sent a cease and
desist letter to RemarQ, demanding that RemarQ block access to both of the newsgroups at
issue.^2395
RemarQ responded by refusing to comply with ALS Scan’s demand but advising ALS
Scan that RemarQ would eliminate individual infringing items from the newsgroups if ALS Scan
identified them “with sufficient specificity.”^2396 ALS Scan filed suit, alleging copyright
infringement and violations of Title II of the DMCA. In response, RemarQ filed a motion to
dismiss the complaint or, in the alternative, for summary judgment, and attached affidavits
stating that it was prepared to remove articles posted in its newsgroups if the allegedly infringing
articles were specifically identified as required by the DMCA. The district court dismissed the
complaint, ruling that RemarQ could not be liable for contributory infringement because ALS
Scan failed to comply with the notice requirements of Section 512(c)(3)(A) of the DMCA.^2397
On appeal, ALS Scan contended that it “substantially” complied with the notice
requirements of the DMCA and that it therefore put RemarQ sufficiently on notice of
infringement activities that RemarQ lost its immunity under the DMCA by failing to remove the
infringing material. RemarQ argued in response that it did not have knowledge of the infringing
activity as a matter of law because ALS Scan failed to identify the infringing works as required
by the DMCA, and RemarQ was entitled to the safe harbor provisions of the DMCA.^2398
The Fourth Circuit reversed on two grounds. First, the court noted that, in order to be
entitled to the safe harbor of Section 512(c), an OSP must satisfy all three of the safe harbor
requirements of Section 512(c)(1), specifically, that: (i) it has neither actual knowledge that its
system contains infringing materials nor awareness of facts or circumstances from which
infringement is apparent, or it has expeditiously removed or disabled access to infringing
material upon obtaining actual knowledge of infringement; (ii) it receives no financial benefit
directly attributable to infringing activity; and (iii) it responded expeditiously to remove or
disable access to material claimed to be infringing after receiving notice from the copyright
holder conforming to the requirements of Section 512(c)(3). The Fourth Circuit held that “a
showing under the first prong – the lack of actual or constructive knowledge – is prior to and
separate from the showings that must be made under the second and third prongs.”^2399 The
Fourth Circuit noted that, although it had treated RemarQ’s motion as a motion to dismiss, rather
(^2394) Id. at 620.
(^2395) Id.
(^2396) Id. at 621.
(^2397) Id.
(^2398) Id. at 622.
(^2399) Id. at 623.