than as a motion for summary judgment, it had failed to take into account the allegation in the
complaint that RemarQ had actual knowledge of the infringing nature of the two newsgroups
even before being contacted by ALS Scan. Although this allegation was denied by RemarQ, the
Fourth Circuit noted that the district court was required to accept the allegation as true for
purposes of testing the adequacy of the complaint under F.R.C.P. 12(b)(6).^2400
Second, whether or not RemarQ’s motion was treated as one to dismiss or for summary
judgment, the Fourth Circuit held that ALS Scan had substantially complied with the notice
requirement of the third prong. The district court had found that ALS Scan’s notice failed to
comply with two of the six requirements of notification – namely, that the notice include a list of
infringing works on the RemarQ site and that the notice identify the infringing works in
sufficient detail to enable RemarQ to locate and disable them (per Section 512(c)(3)(A)(ii) &
(iii)).^2401
The Fourth Circuit disagreed, noting that under Section 512(c)(3)(A), a notice need
comply with the prescribed format only “substantially,” and under Section 512(c)(3)(A)(ii), a
copyright holder need only provide a “representative” list of infringed works on the site.^2402 The
court stated: “This subsection specifying the requirements of a notification does not seek to
burden copyright holders with the responsibility of identifying every infringing work – or even
most of them – when multiple copyrights are involved. Instead, the requirements are written so
as to reduce the burden of holders of multiple copyrights who face extensive infringement of
their works. Thus, when a letter provides notice equivalent to a list of representative works that
can be easily identified by the service provider, the notice substantially complies with the
notification requirements.”^2403
The Fourth Circuit found that on the particular facts of the case, ALS Scan’s notice
constituted an adequate representative list of infringed works and substantially complied with the
DMCA notice requirements:
In this case, ALS Scan provided RemarQ with information that (1) identified two
sites created for the sole purpose of publishing ALS Scan’s copyrighted works,
(2) asserted that virtually all the images at the two sites were its copyrighted
material, and (3) referred RemarQ to two web addresses where RemarQ could
find pictures of ALS Scan’s models^2404 and obtain ALS Scan’s copyright(^2400) Id.
(^2401) Id. at 621.
(^2402) Id. at 625.
(^2403) Id.
(^2404) It is curious that the Fourth Circuit found the supplied Web address where RemarQ could find pictures of ALS
Scan’s models to aid ALS Scan’s argument that RemarQ had adequate notice of what particular infringing
photographs were contained on RemarQ’s site. The referenced Web address contained adult “teaser” photos of
the ALS Scan models. There is nothing in the opinion of the court indicating that the “teaser” photos were the
actual ones allegedly on the RemarQ site. Rather, the argument seems to be that the “teaser” photos would
identify what the ALS Scan models looked like. Is the Fourth Circuit implying that RemarQ then bore the
burden to go look at the photos on the newsgroups at issue to see if they contained pictures of the same humans