ALS Scan, Inc. v. Remarq Communities, Inc.

ALS Scan, Inc. (plaintiff) created and sold adult photographs and owned all rights therein. Remarq Communities, Inc. (defendant) was an internet service provider that provided its subscribers with access to newsgroups covering thousands of topics. Subscribers could post articles to newsgroups and participate in discussions with other subscribers. Remarq did not monitor, regulate, or censor the content of articles posted in a newsgroup by a subscriber, but did remove articles regularly due to its limited storage. Two of the newsgroups to which Remarq provided its subscribers access—“alt.als” and “alt.binaries.pictures.erotica.als”—had published thousands of photographs belonging to ALS Scan over the course of several months. ALS Scan sent a cease-and-desist letter that directed Remarq to these newsgroups and notified it that virtually all of the photographs published on these newsgroups belonged to ALS Scan. Remarq refused the demand but instructed ALS Scan that it would remove individual infringing material from these newsgroups if ALS Scan specifically identified them. When the parties failed to resolve the dispute, ALS Scan brought suit against Remarq for violations of the Copyright Act and the Digital Millennium Copyright Act (DMCA), among other causes of action. The district court dismissed the complaint, ruling that Remarq could not be held liable for infringement because ALS Scan failed to meet the notice requirements set forth in the DMCA. ALS Scan appealed.