text and photographs.”^2463 The first registration read “compilation, text, and photographs,” but
under the description of the work to be registered, the form read “compilation of public domain
material, substantial original text, and original photographs.”^2464 The court concluded that the
preceding language indicated that all of the registrations were compilation registrations, because
the reference to “photographs” could only have efficacy as a description of the work to be
registered if it was made with reference to the other elements being copyrighted – the
compilation of work.^2465 Accordingly, CoStar was eligible for only 13 statutory damage awards,
corresponding to the number of registered compilations.^2466
The Scope of the Preliminary Injunction. An interesting aspect of the case concerned the
scope of preliminary injunction the court entered against LoopNet and the obligations the court
imposed on LoopNet once it was notified that one of its users had posted an infringing
photograph on the LoopNet system. In an earlier proceeding, the court had entered a preliminary
injunction directing LoopNet to “(1) remove from its web site all photographs for which it
received notification of claimed infringement from CoStar; (2) notify the user who uploaded the
photograph of CoStar’s claim of the removal and that repeat acts of infringement might result in
restrictions on the user’s (or the brokerage firm’s) access to the web site; and (3) with regard to
identified brokers, require prima facie evidence of copyright ownership prior to posting a
photograph.”^2467 Dissatisfied with LoopNet’s performance, CoStar sought a number of
substantial modifications to the requirements imposed on LoopNet, including a requirement to
obtain a hand-signed written declaration of copyright ownership prior to any posting and a
requirement that any repeat infringer thereafter be prohibited from submitting any further
photographs.^2468
The court refused to make the modifications requested by CoStar. In view of its rulings
with respect to the contributory infringement and safe harbor issues, the court concluded that
CoStar had not shown a sufficient likelihood of success to justify the enhancements to the order
it sought.^2469 The court did, however, rule that a probation/termination policy LoopNet had set
up, in which brokers who posted infringing photographs could have their probationary status
removed in three, six, or twelve month intervals, was inadequate in two respects: “First, all
brokers in an office in which any broker posted an allegedly infringing photograph after notice to
any broker in that same office should be subject to the prima facie evidence requirement.”^2470
Second, the court required that the status of “repeat infringer,” once achieved, remain during the
(^2463) Id.
(^2464) Id.
(^2465) Id. at 711-12.
(^2466) Id. at 712.
(^2467) Id. at 715.
(^2468) Id. at 715-16.
(^2469) Id. at 716.
(^2470) Id.