## Facts

- ALS Scan, Inc., a copyright holder of adult photographs, found hundreds of allegedly infringing images posted in two Usenet newsgroups accessible through RemarQ Communities, Inc., an ISP: “alt.als” and “alt.binaries.pictures.erotica.als.”
- RemarQ provided subscribers access to many newsgroups and did not routinely monitor content, but could filter or block access to particular groups.
- ALS sent RemarQ a cease-and-desist letter identifying the two newsgroups, asserting they existed to distribute ALS’s copyrighted images, and demanding removal of the groups within 24 hours.
- ALS indicated the infringing images could be identified by ALS’s name and copyright notice and referenced ALS’s websites for copyright information.
- RemarQ refused to act absent more specific identification of infringing articles, asserting ALS’s notice did not satisfy the DMCA’s notification requirements.
- ALS sued for direct, contributory, and vicarious copyright infringement (and related unfair competition claims).

## Issues

1. Whether a copyright owner’s notice that substantially complies with 17 U.S.C. § 512(c)(3) is sufficient to prevent an ISP from maintaining § 512(c) safe-harbor immunity based on technical notice defects.
2. Whether summary judgment was proper on ALS’s claims for (a) direct infringement and (b) contributory and vicarious infringement where the ISP asserted DMCA safe-harbor protection.

## Decision

- Affirmed summary judgment for RemarQ on direct infringement, holding that merely providing access to user-posted infringing content in newsgroups is not direct infringement absent volitional copying or distribution by the ISP.
- Reversed summary judgment for RemarQ on contributory and vicarious infringement, holding ALS’s notice substantially complied with § 512(c)(3) and RemarQ could not rely on alleged notice defects to retain safe-harbor immunity as a matter of law.
- Remanded for further proceedings on whether RemarQ met all conditions of the § 512(c) safe harbor and whether the facts supported contributory or vicarious liability (including knowledge, ability to control, financial benefit, and the character of the challenged newsgroups).

## Legal Principles

- Under the DMCA, § 512(c) limits ISP liability for user-directed storage only if statutory conditions are satisfied, including expeditious removal or disabling of access upon receiving proper notice.
- A notification under § 512(c)(3) need not be perfectly technical; “substantial compliance” that provides information reasonably sufficient to locate and address the infringement can be enough.
- Once an ISP receives a substantially compliant notice, it may not preserve safe-harbor immunity solely by pointing to technical deficiencies in the notice.
- Direct infringement generally requires volitional conduct; passive provision of access to infringing user content does not, by itself, establish direct liability for an ISP.
- Secondary liability (contributory or vicarious) may turn on factual questions about the ISP’s knowledge, contribution, control, and financial benefit, making summary judgment improper on an undeveloped record.

## Conclusion

The Fourth Circuit distinguished passive ISP access from direct infringement and held that a DMCA takedown notice that substantially complies with § 512(c)(3) can defeat an ISP’s attempt to retain § 512(c) safe-harbor immunity based on minor notice defects, requiring further fact-finding on secondary liability and safe-harbor conditions.


ALS Scan, Inc. v. RemarQ Cmtys., Inc., 239 F.3d 619 (4th Cir. 2001)