The case centres on an issue of great import to Internet companies: To what extent are Internet portal sites and service providers responsible for policing their networks for copyright infringement?
Since the three-judge panel ruled Feb. 6, industry trade organisations and Internet companies have filed two friend-of-the-court briefs. More are expected, supporting a petition for a rehearing by the entire 4th Circuit Court of Appeals.
The briefs charge that the ruling, against an ISP, seriously undermines an important protection for service providers built into a 1998 copyright law. Since the decision is the first direct appellate-level ruling on this protection, service providers say they are concerned it sets a dangerous precedent that could inhibit the Internet's growth.
"We think the court substantially misconstrued" the law, said Tim Stevens, General Counsel for Inktomi, who, together with Verizon Communications and the U.S. Internet Industry Association, filed a brief Tuesday.
The decision concerns a "Safe Harbour" provision for ISPs, part of the Digital Millennium Copyright Act, which says generally that service providers cannot be held liable for copyright infringement by their users unless the copyright owner sends them notice of the violations.
When the law was being negotiated, service providers argued that there is so much potentially infringing material passing through their networks that it would seriously undermine their business model if they are required to "police" their network. Thus, they lobbied hard for and got a provision that spells out what sort of notification is required to hold a service provider liable.
"There was a tough, hard fought negotiation for the DMCA, and this was the compromise," said Jason Mahler, vice president and general counsel at the Computer and Communications Industry Association, who filed a brief last week. "This was something we believed we could live with. We couldn't live with something merely close to this - which is what the courts seem to be forcing upon us."
At stake in the Maryland case is whether the notice sent by the copyright owner was sufficiently detailed enough to compel the service provider to act.
In that case, ALS Scan, which creates and markets "adult" photographs, sued RemarQ Communities ISP, for not responding to a notice saying that two Newsgroups on RemarQ contain postings of hundreds of photographs for which ALS Scan holds the copyright. Indeed, ALS Scan noted, the Newsgroups were titled alt.als and alt.binaries.pictures.erotica.als.
RemarQ claimed, however, that ALS Scan did not comply with the DMCA notice procedure for service providers. According to the law, RemarQ said, ALS Scan must send an explicit list of all the postings it believes are infringing.
The trial court ruled in favour of RemarQ early last year, but the 4th Circuit reversed that decision in part, saying that ALS Scan "substantially complied" with the DMCA since a substantial portion of the material on the two Newsgroups is infringing.
Robert Vieth, who argued the case for RemarQ, recently acquired by Critical Path, said the company didn't want to take down the Newsgroups since some of the postings were photos not owned by ALS Scan or just text, making it a First Amendment issue.
"ALS Scan has no right to demand that those messages come down," he said. "It goes back to the whole nature of Usenet. If you start taking down Newsgroups based on complaints, suddenly you're out of business."
The Electronic Frontier Foundation, a civil liberties group, is expected to file its own brief Wednesday.
