4th Circuit Takes ISP out of the Direct Infringement Loop(Net)
Good decision today in CoStar v. LoopNet. The 4th Circuit affirms that even in the age of DMCA, liability for direct copyright infringement requires "volitional conduct" and "meaningful causation" by the alleged infringer.
LoopNet allowed subscribers to post real estate photographs on its website. CoStar claimed that some of these photographs infringed its copyrights, and sued LoopNet as the direct infringer. The court held that even though LoopNet reviewed the images before posting them, the ISP was not the one actually engaged in the infringing reproduction.
The ISP in this case is an analogue to the owner of a traditional copying machine whose customers pay a fixed amount per copy and operate the machine themselves to make copies. When a customer duplicates an infringing work, the owner of the copy machine is not considered a direct infringer. Similarly, an ISP who owns an electronic facility that responds automatically to users’ input is not a direct infringer. If the Copyright Act does not hold the owner of the copying machine liable as a direct infringer when its customer copies infringing material without knowledge of the owner, the ISP should not be found liable as a direct infringer when its facility is used by a subscriber to violate a copyright without intervening conduct of the ISP.
Direct copyright infringement is still a strict liability offense, but it's good to be reminded that you have to do something to trigger that liability.[Wendy: The Blog]