ALS Scan v. Remarq Communities, Inc.
ALS Scan v. Remarq Communities, Inc., 239 F.3d 619 (4th Cir. 2001)
ALS, an adult photograph provide sued Remarq, an ISP, over two newsgroups that Remarq subscribers could access. Id. at 620. ALS claimed the newsgroups contained unauthorized copies of ALS photographs. Id. ALS had sent a cease and desist letter to Remarq, and Remarq had responded that ALS's letter was insufficiently specific in identifying infringing materials, but that Remarq would removed specifically identified materials. Id. at 621.
The Fourth Circuit considered the issue of whether ALS gave Remarq proper notice under the DMCA. The district court had concluded that plaintiff’s notice, which cited two Web sites, was defective because it failed to include a list of infringing works contained on Remarq’s system and failed to identify the infringing works in sufficient detail to allow Remarq to locate and disable them. Id. at 624. ALS argued on appeal that the two Web sites in question were created for the sole purpose of posting ALS’s copyrighted material, and that by directing Remarq to the sites, it had satisfied the notice requirements. Id. The Fourth Circuit agreed with ALS and reversed the district court’s decision. Id. at 625. It noted that ALS identified the two sites containing infringing information, asserted that all of the images on the sites were ALS’s copyrighted material, referred Remarq to the Web addresses where Remarq could obtain ALS’s copyright information and informed Remarq that the material on Remarq’s system could be identified as belonging to ALS because it included ALS’s name and copyright symbol. Id.
The Fourth Circuit ultimately denied summary judgment to both parties and remanded for the district court to determine facts that would be relevant to whether the defendant had committed contributory or vicarious infringement, such as whether the defendant system’s "‘sole purpose’ [was] infringement of ALS Scan’s copyrights," and whether "‘virtually all’ the images posted in the newsgroups [were] infringing." Id. at 626.