ALS runs a porn site at www.alsscan.com. (ALS stands for "All Ladies Shaved".) RemarQ is an Online Service Provider ("OSP") which provides internet access and Usenet newsgroup access to subscribing members.
Upon discovering a couple of newsgroups containing images from the ALS porn site, ALS sent a cease and desist letter to RemarQ. The cease and desist letter identified the offending newsgroups, but not the infringed images, and demanded that access to those newsgroups be disabled within 24 hours.
RemarQ declined to cease and desist, and informed ALS that if they wanted the images removed from the newsgroups, that they needed to send a DMCA compliant Take-Down notice. A DMCA compliant Take-Down notice is required to identify the images with "sufficient specificity."
Having been so rebuked, ALS filed an action in district court claiming direct copyright infringement and contributory copyright infringement.
The court noted that in passing the DMCA, Congress codified Religious Technology Ctr. V. Netcom On-Line Communications Svcs, Inc., 907 F.Supp 1361(N.D.Ca. 1995). The House Report states "[t]he bill distinguishes between direct infringement and secondary liability, treating each separately. This structure is consistent with evolving case law, and appropriate in light of the different legal bases for and policies behind the different forms of liability."
"As to direct infringement, liability is ruled out for passive, automatic acts engaged in through a technological process initiated by another."
In providing access to newsgroups, RemarQ does not monitor, regulate, or censor the content of articles posted in the newsgroup by subscribing members.
In the context of a social networking site where you have lots of different users uploading material, as long as the website owner is not acting like a publisher and monitoring, modifying or making editorial decisions about the uploaded content, then the website owner is not held liable for direct copyright infringement for the material posted by the users.
The DMCA also protects the OSP from claims of contributory copyright infringement. In this case, RemarQ was relying on the web hosting Safe Harbor (512(c)), which provides:
- (1) No liability if OSP:
- (i) does not have actual knowledge that Work or activity is infringing;
- (ii) is not aware of circumstances from which infringing activity is apparent; or
- (iii) upon obtaining knowledge or awareness, OSP expeditiously removes Work
The question is whether an OSP can enjoy this Safe Harbor from copyright infringement liability when it is put on notice of infringing activity on its system in a manner that is not in technical compliance with DMCA requirements. The requirements of notification are quite explicit in section 512(c)(2)(A):
- (i) authorized signature
- (ii) id of the Work claimed to be infringed, or representative list if there are
- (iii) id of the infringing Work and sufficient information to enable OSP to locate
- (iv) sufficient information to enable OSP to contact the Poster
- (v) good faith statement that Work is infringing
- (vi) statement that notification is accurate
In the spirit of achieving a balance between the responsibilities of the service provider and the copyright owner,
the DMCA requires that a copyright owner put the OSP on notice in a detailed manner. There is an allowance for
"substantial" compliance with the notice requirements, meaning that a technical discrepancy will not vitiate
the notice as indicated in section 512(c)(2)(B):
- (i) Defective notice will not serve to convey knowledge or awareness to OSP
- (ii) if notice substantially complies with id requirements, OSP must assist in
So what constitutes "substantial compliance"? According to the legislative history, the DMCA intended "substantial compliance" to permit notification to be effective despite "technical errors" such as "misspelling a name, supplying an outdated area code if the phone number is accompanied by an accurate address, or supplying an outdated name if accompanied by an e-mail address that remains valid for the successor of the prior designated agent or agent of copyright owner."
On this basis, ALS has not complied with any of the notice requirements (except maybe the first element), such defective notice does not convey awareness to RemarQ, and RemarQ is therefore protected from liability by virtue of this Safe Harbor.
However, the court saw fit to relax the notification requirements well beyond the face of the statute or intent reflected in the legislative history. Specifically,
- (i) signature: presumably still required
- (ii) ID of infringed Work: link to webpage of naked women equivalent to ID of specific works that may include some of those naked women
- (iii) ID of infringing Work: ID of a newsgroup is equivalent to a "representative list"
- (iv) Information to contact Infringer: not required
- (v) Good Faith Statement: not required (can be inferred)
- (vi) Accuracy Statement: not required (can be inferred)
What Just Happened?
The court is making these concessions in part because there are multiple works involved. The court indicates that since there
is so much porn involved, it would be an undue burden on ALS to have to identify each infringing piece of porn.
The dangerous message implicit here is that there is a two-tiered system of justice in which a struggling artist with
few works infringed will need to strictly comply with the notice requirements of 512(c)(2)(A), but media conglomerates are
free to issue non-complying edicts that effectively strip the OSP of its Safe Harbor protection.
The holding of this case was cited, and fortunately somewhat tempered, in a subsequent case in the 9th Circuit
(Perfect 10 v. CCBill). Coincidentally, this case also involves a
pornographer suing for contributory infringement.