South-Western Legal Studies in Business

ISP Not Liable for Infringement by Posting Copyrighted Photos
Description Appeals court held that the safe harbor provision of the Digital Millennium Copyright Act protected an ISP that posted some copyrighted photos that were provided by clients. The ISP made a good faith effort to limit the infringing postings.
Topic Cyberlaw
Key Words Website; Digital Millennium Copyright Act; Copyright; Infringement; Safe Harbor
C A S E   S U M M A R Y
Facts CoStar provides commercial real estate information in a comprehensive database on properties in the U.S., including photos of the properties. It owns the copyright on most of the photos. Its database is available to customers via the Internet. Each customer agrees not to post CoStar's photos on its own website or on the website of a third party. LoopNet is an ISP whose website allows subscribers, mostly real estate brokers, to post listings of commercial real estate on the Internet. It has over 100,000 customer listings and about 33,000 photos of property. It is a web hosting service for brokers, who promise not to post copies of photos without authorization. CoStar photos appeared on LoopNet, so CoStar complained. LoopNet removed the photos and had employees look for copyright violations. When CoStar sued LoopNet for copyright infringement, it identified 300 of its photos on LoopNet's site. The district court held for LoopNet, CoStar appealed.

Affirmed. LoopNet, as an ISP, is immune from liability for copyright infringement. The Digital Millennium Copyright Act provides a safe harbor for ISP operators if they are involved in automatic copying, storage and transmission of copyrighted materials. If an ISP contributes to infringement, the safe harbor is lost. The fact that LoopNet knew there were infringement problems, and attempted to control them, does not mean it loses its safe harbor. It did not attempt to profit by knowingly infringe on CoStar's photos.

Citation CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir., 2004)

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