Real estate photos not really infringing

In CoStar Group, Inc. v. LoopNet, Inc., the Fourth Circuit holds that an ISP or web site publisher is not liable for direct infringement of copyright by providing a service where users could possible infringe upon copyrights.
LoopNet is a provider of commercial real estate information. Sellers of real estate may upload information about a property to LoopNet’s database. Users may upload photographs of the property. Some users uploaded CoStar’s copyrighted photographs to LoopNet’s database.
In order to “establish direct liability under §§501 and 106 of the [Copyright] Act, something more musts be shown than mere ownership of a machine used by others to make illegal copies. there must be actual infringing conduct with a nexus sufficiently close and casual to the illegal copying that one could conclude that the machine owner himself trespassed on the exclusive domain of the copyright owner.”
CoStar argues that because LoopNet’s conduct does not fall within the DMCA safe harbor provision, LoopNet should have no immunity. The court rejects this argument, finding that the DMCA does not overrule Religious Technology Center v. Netcom On-Line Communications Services and common law interpretations of §§501 and 106. “It is clear that Congress intended the DMCA’s safe harbor for ISPs to be a floor, not a ceiling of protection.”
“ISPs when passively storing material at the direction of users in order to make that material available to other users upon their request, do not “copy” the material in direct violation of §106 of the Copyright Act.” An ISP can become indirectly liable upon a showing of additional involvement sufficient to establish a contributory or vicarious violation of the act. Where a LoopNet employee’s review of uploaded photographs is so cursory as to be insignificant, that should not be considered volitional conduct and therefore, LoopNet is not liable for direct copyright infringement.
CoStar Group, Inc. v. Loopnet, Inc., 03-1991 (4th Cir.,  Jun. 21, 2004). (via The Trademark Blog