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

B. Wesley Barger, Jr.*
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.
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

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