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photograph was uploaded into LoopNet's system by a subscriber, the photograph was made public immediately. Subsequent to CoStar Group's complaint, LoopNet initiated a system of review, which transferred uploads to one of LoopNet's internal computers for review. A LoopNet employee then reviewed the photograph to ensure that (1) it was an image of commercial real estate, and (2) it was not an obviously copyrighted image. CoStar Group claimed that by
September 2001, it had found over 300 of its copyrighted images on LoopNet's website posted by LoopNet's subscribers. LoopNet had about 33,000 photographs posted by its subscribers at that time. LoopNet responded to takedown notices from CoStar Group.
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As for CoStar Group's argument that the screening process by a LoopNet employee rendered LoopNet liable for direct copyright infringement, the court held that this conduct did not add volition to LoopNet's involvement in storing the copy. The court reasoned that the employee's look was so cursory as
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decision as "a particularly rational interpretation of § 106 ." The court reasoned that similar to a copying machine, an ISP who owned an electronic facility that responded automatically to users' input was not a direct infringer. The court also reasoned that temporary electronic copies made during
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whose website allowed subscribers to post listings of commercial real estate on the
Internet. LoopNet did not post real estate listings, but enabled users to post listings that contained text messages and photographs. Prior to CoStar Group's original complaint about copyright infringement, when a
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case was still a valid precedent. The court first reasoned that the DMCA specifically provided that despite a failure to meet the safe-harbor conditions of § 512, an ISP was still entitled to all other arguments under the law. Second, the court reasoned that when
Congress codified a
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case held that direct copyright infringement implied some element of volition or causation, which was lacking in automatic and passive ISPs. The district court held that LoopNet was such an automatic and passive ISP and therefore not liable for direct copyright infringement.
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case as the only exemption from liability for direct copyright infringement for ISPs. CoStar Group argued that because LoopNet could not satisfy the conditions of the DMCA, LoopNet should be strictly liable for direct copyright infringement.
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Circuit Judge
Gregory dissented with the majority opinion. Judge Gregory stated that LoopNet employees had made conscious choices to accept or reject the photographs. Therefore, LoopNet had engaged in active, volitional conduct. Since the
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s construction of copyright infringement liability for ISPs was still valid, LoopNet's acts were volitional and therefore LoopNet should be liable for direct copyright infringement because of its employee's screening process.
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principle, the common law remained good law. Third, the court reasoned that legislative history suggested that
Congress intended the DMCA's safe harbor for ISPs to be a floor, not a ceiling, of protection.
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to be insignificant, and if it had any significance, it only lessened the possibility of copyright infringement. LoopNet still lacked the necessary volition or causation for direct copyright infringement.
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the transmission were not "fixed" because such copies were used to automatically transmit users' material and they were not "of more than transitory duration."
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is a provider of commercial real estate information. Its database included a large collection of photographs of commercial properties. LoopNet was an
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Affirmed the decision of the district court, which found that the defendant was not liable for direct copyright infringement
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On appeal, the parties disputed whether LoopNet should be liable for direct copyright infringement.
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Religious
Technology Center v. Netcom On-Line Communication Services, Inc.
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United States Court of
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Online
Copyright Infringement Liability Limitation Act
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United States Court of
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463:Reporters Committee for Freedom of the Press
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370:In response to CoStar’s argument that the
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108:Learn how and when to remove this message
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302:Religious Technology Center v. Netcom
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