information. In addition, it noted that material at the site could be identified as
ALS Scan’s material because the material included ALS Scan’s ‘name and/or
copyright symbol next to it.’ We believe that with this information, ALS Scan
substantially complied with the notification requirement of providing a
representative list of infringing material as well as information reasonably
sufficient to enable RemarQ to locate the infringing material.^2405Because RemarQ had received adequate notice of infringement and had failed to act to
remove the infringing material, it was not entitled to the safe harbor of the DMCA.^2406 The
Fourth Circuit observed that the immunity of the DMCA “is not presumptive, but granted only to
‘innocent’ service providers who can prove they do not have actual or constructive knowledge of
the infringement, as defined under any of the three prongs of 17 U.S.C. § 512(c)(1). The
DMCA’s protection of an innocent service provider disappears at the moment the service
provider loses its innocence; i.e., at the moment it becomes aware that a third party is using its
system to infringe. At that point, the Act shifts responsibility to the service provider to disable
the infringing material ....”^2407 The Fourth Circuit remanded the case for further proceedings on
ALS Scan’s copyright infringement claims and any other affirmative defenses that RemarQ
might have.^2408
There are a few lessons to be learned from the ALS Scan case. First, where multiple
copyrighted works are allegedly infringed, a copyright holder need not specifically identify all
particular instances of infringing material at the site in order to give adequate notice to the
Service Provider sufficient to give rise to a duty on its part to act in order to preserve the DMCA
safe harbors. Second, at least in the specific factual scenario where all the allegedly infringing
material is contained in a single area such as a newsgroup, and the area comprises almost all
infringing material, the Service Provider may need to remove or block access to the entire area as
a precaution to preserve the safe harbor. It might have been sufficient for RemarQ to have
removed or blocked access only to those photos within the newsgroups that bore ALS Scan’s
name or copyright notice (the opinion does not address this question) – but even if so, it appears
that the Fourth Circuit may have contemplated that RemarQ, and not ALS Scan, would bear the
burden of identifying the individual photos for removal or blocking access to. Third, the
decision suggests that a Service Provider may not be wise to rely on certain failures on the part
of a copyright holder to comply with all the technical notice requirements of Section 512(c)(3) as
a basis for not having to act to remove or block allegedly infringing material. If a court later
determines that the notice was “substantially” compliant, the Service Provider may have lost its
DMCA safe harbor by failing to act.
as those in the “teaser” photos? Perhaps the truly key facts were that the infringing photos in the newsgroups
were identified with ALS Scan’s name and/or copyright notice and they were all contained in one “place” –
namely, a couple of particular newsgroups almost entirely devoted to ALS Scan photos.(^2405) Id.
(^2406) Id. at 625-26.
(^2407) Id. at 625.
(^2408) Id. at 626.