About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

6 Chi.-Kent J. Intell. Prop. 1 (2006-2007)

handle is hein.journals/jointpro6 and id is 1 raw text is: Copyright © 2006, Chicago-Kent Journal of Intellectual Property COSTAR V LOOPNET: PROTECTION OF THE INTERNET AT THE EXPENSE OF COPYRIGHT PROTECTION? B. Wesley Barger, Jr.* INTRODUCTION Under the Copyright Act, any infringement of a copyright, either intentional or otherwise, makes one liable to the copyright holder.' In the past, courts were split on how to deal with this issue in regards to Internet Service Providers (ISPs). Some courts favored a strict liability approach while others leaned towards finding no liability for purely passive actions that led to infringement. To remedy this split, Congress passed the Digital Millennium Copyright Act, (DMCA)2 which provided a safe haven for ISPs under particular circumstances.3 While the split over the approaches to liability was resolved, the general question of whether liability existed was not, and new questions arose. Were the traditional infringement defenses rendered useless with the passing of the DMCA? Suppose an ISP took active steps to prevent infringement; would such attempts to prevent infringement actually increase the ISP's exposure to copyright liability? The United States Court of Appeals for the Fourth Circuit addressed these questions in the case of CoStar Group, Inc. v. LoopNet, Inc..4 Part I of this note will discuss the history of and the current state of Copyright infringement. Part II of this note will discuss the general background of copyright infringement as it relates to CoStar. Part III summarizes and analyzes the majority and dissenting opinions of CoStar and Part IV forecasts how the CoStar decision will be applied to future decisions. I conclude that the CoStar court correctly decided the case because the defendant took active, good-faith steps to prevent infringement, and copyright law should reward such attempts to further its goals even if such attempts may cause ISPs to abandon their usual passive role. I. COPYRIGHT INFRINGEMENT The Copyright Act grants exclusive rights to a copyright holder, including the right to reproduce and to authorize the reproduction of a copyrighted work.5 Infringement occurs when anyone violates any of those exclusive rights granted in the Copyright Act.6 The Supreme Court developed a general two-step test to determine copyright infringement: first, is there a valid copyright and, second, has there been a copying of constituent elements of the work that are * B. Wesley Barger, Jr., J.D. candidate, University of Richmond School of Law (2007 expected); B.S.M.E., Virginia Polytechnic Institute (Virginia Tech) (2004). 1 See 17 U.S.C. § 501(a) (2005). 2 17 U.S.C. § 512 (2005). 3 See 17 U.S.C. § 512. See also S. Rep. No. 105-190, at 19-20 (1998); H.R. Rep. No. 105-551, pt. 2, at 50 (1998). 4 373 F.3d 544 (4th Cir. 2004) (hereinafter CoStar). 5 17 U.S.C. § 106(1) (2005); Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984). ' 17 U.S.C. § 512 (2005). 6 Chi.-Kent J. Intell. Prop. 1

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most