meet” case^2435 that was relied on by the Ninth Circuit in the Napster I case,^2436 that once it had
given LoopNet notice of specific alleged infringements, LoopNet had sufficient knowledge of
ongoing infringements by its users to be liable for contributory infringement based on its failure
to take more “drastic measures” to prevent infringement.^2437 LoopNet argued that it could not be
liable for contributory infringement because it had no knowledge of the infringements prior to
notice from CoStar, and it discontinued access to the infringing material immediately upon
discovery. LoopNet also argued that its DMCA policy for removal of infringing material and of
denying access to repeat infringers was sufficient both to give it the benefit of the Section 512(c)
safe harbor and to avoid common law contributory liability.^2438
Turning first to the issue of knowledge, the court held that LoopNet did not have
knowledge of the alleged infringements prior to receiving notice from CoStar, based on the facts
that CoStar did not attach copyright notices to its photographs and LoopNet did not know what
rights CoStar may have granted in license agreements to users of its commercial real estate
database containing the photographs.^2439 Citing the Netcom case, the court ruled, “In the case of
a service provider, knowledge giving rise to liability only exists when there is no colorable claim
of users’ noninfringement.”^2440 LoopNet could therefore not be charged with any form of
knowledge before receiving claims of infringement from CoStar. The central issue, then, was
whether LoopNet’s policies to deter infringement, remove infringing works, and prevent repeat
infringement were adequate both under the common law and for purposes of the DMCA safe
harbor.^2441 In an important ruling, the court held that the parameters of the liability protection
provided by the Section 512(c) safe harbor were “not contiguous with the bounds of liability for
contributory infringement.”^2442 This is contrary to the opposite conclusion reached by the district
court in an early decision in the Napster case,^2443 later reversed by the Ninth Circuit,^2444 that the
parameters for safe harbor liability protection and common law contributory liability were
contiguous, and the safe harbor could therefore not protect contributory infringers.
(^2435) Fonovisa v. Cherry Auction, 76 F.3d 259 (9th Cir. 1996).
(^2436) A&M Records v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).
(^2437) CoStar, 164 F. Supp. 2d at 696-97.
(^2438) Id. at 697-98.
(^2439) Id. at 698. The court further noted that the fact that CoStar’s employees were involved in manually examining
photographs before they were posted on the site did not change the knowledge analysis. “LoopNet has people
checking photographs for purposes other than copyright infringement and CoStar’s own experts could not
distinguish between a CoStar and non-CoStar photograph upon inspection.” Id. at 700 n. 6.
(^2440) Id. at 698. This is a rather high standard for knowledge for contributory infringement – it seems that in the
many circumstances in which an OSP does not have any direct involvement with its users’ postings of materials
on its site, the OSP will be unable to be certain that there is “no colorable claim” of its users’ noninfringement.
(^2441) Id. at 698-99.
(^2442) Id. at 699.
(^2443) A&M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896, 919 n. 24 (N.D. Cal. 2000).
(^2444) A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1025 (9th Cir. 2001).