PUBLISHED
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`
`ALS SCAN, INCORPORATED,
`Plaintiff-Appellant,
`v.
`REMARQ COMMUNITIES,
`INCORPORATED,
`
`Defendant-Appellee.
`
`No. 00-1351
`
`Appeal from the United States District Court
`for the District of Maryland, at Baltimore.
`J. Frederick Motz, Chief District Judge.
`(CA-99-2594-JFM)
`
`Argued: November 1, 2000
`
`Decided: February 6, 2001
`
`Before WIDENER, WILKINS, and NIEMEYER, Circuit Judges.
`
`Affirmed in part, reversed in part, and remanded by published opin-
`ion. Judge Niemeyer wrote the opinion, in which Judge Widener and
`Judge Wilkins joined.
`
`COUNSEL
`
`ARGUED: Harry Brett Siegel, LAW OFFICE OF JOEL MARC
`ABRAMSON, Columbia, Maryland, for Appellant. Robert R. Vieth,
`COOLEY GODWARD, L.L.P., Reston, Virginia, for Appellee. ON
`BRIEF: Robert T. Cahill, COOLEY GODWARD, L.L.P., Reston,
`Virginia, for Appellee.
`
`(cid:252)
`(cid:253)
`(cid:254)
`

`
`2
`
`ALS SCAN, INC. v. REMARQ COMMUNITIES, INC.
`
`OPINION
`
`NIEMEYER, Circuit Judge:
`
`We are presented with an issue of first impression — whether an
`Internet service provider enjoys a safe harbor from copyright infringe-
`ment liability as provided by Title II of the Digital Millennium Copy-
`right Act ("DMCA") when it is put on notice of infringement activity
`on its system by an imperfect notice. Because we conclude that the
`service provider was provided with a notice of infringing activity that
`substantially complied with the Act, it may not rely on a claim of
`defective notice to maintain the immunity defense provided by the
`safe harbor. Accordingly, we reverse the ruling of the district court
`that found the notice fatally defective, and affirm its remaining rul-
`ings.
`
`I
`
`ALS Scan, Inc., a Maryland corporation, is engaged in the business
`of creating and marketing "adult" photographs. It displays these pic-
`tures on the Internet to paying subscribers and also sells them through
`the media of CD ROMs and videotapes. ALS Scan is holder of the
`copyrights for all of these photographs.
`
`RemarQ Communities, Inc., a Delaware corporation, is an online
`Internet service provider that provides access to its subscribing mem-
`bers. It has approximately 24,000 subscribers to its newsgroup base
`and provides access to over 30,000 newsgroups which cover thou-
`sands of subjects. These newsgroups, organized by topic, enable sub-
`scribers to participate in discussions on virtually any topic, such as
`fine arts, politics, religion, social issues, sports, and entertainment.
`For example, RemarQ provides access to a newsgroup entitled "Balti-
`more Orioles," in which users share observations or materials about
`the Orioles. It claims that users post over one million articles a day
`in these newsgroups, which RemarQ removes after about 8-10 days
`to accommodate its limited server capacity. In providing access to
`newsgroups, RemarQ does not monitor, regulate, or censor the con-
`tent of articles posted in the newsgroup by subscribing members. It
`does, however, have the ability to filter information contained in the
`
`

`
`ALS SCAN, INC. v. REMARQ COMMUNITIES, INC.
`
`3
`
`newsgroups and to screen its members from logging onto certain
`newsgroups, such as those containing pornographic material.
`
`Two of the newsgroups to which RemarQ provides its subscribers
`access contain ALS Scan’s name in the titles. These newsgroups —
`"alt.als" and "alt.binaries.pictures.erotica.als" — contain hundreds of
`postings that infringe ALS Scan’s copyrights. These postings are
`placed in these newsgroups by RemarQ’s subscribers.
`
`Upon discovering that RemarQ databases contained material that
`infringed ALS Scan’s copyrights, ALS Scan sent a letter, dated
`August 2, 1999, to RemarQ, stating:
`
`and
`["alt.als"
`newsgroups
`these
`of
`Both
`"alt.binaries.pictures.erotica.als"] were created for the sole
`purpose of violating our Federally filed Copyrights and
`Tradename. These newsgroups contain virtually all Feder-
`ally Copyrighted images. . . . Your servers provide access
`to these illegally posted images and enable the illegal trans-
`mission of these images across state lines.
`
` This is a cease and desist letter. You are hereby ordered
`to cease carrying these newsgroups within twenty-four (24)
`hours upon receipt of this correspondence . . . .
`
` America Online, Erol’s, Mindspring, and others have all
`complied with our cease and desist order and no longer
`carry these newsgroups.
`
`*
`
` *
`
` *
`
`at
`identified
`can be
` Our ALS Scan models
`http://www.alsscan.com/modlinf2.html[.] Our
`copyright
`information can be reviewed at http://www.alsscan.com/
`copyrite.html[.]
`
`RemarQ responded by refusing to comply with ALS Scan’s demand
`but advising ALS Scan that RemarQ would eliminate individual
`infringing items from these newsgroups if ALS Scan identified them
`
`

`
`4
`
`ALS SCAN, INC. v. REMARQ COMMUNITIES, INC.
`
`"with sufficient specificity." ALS Scan answered that RemarQ had
`included over 10,000 copyrighted images belonging to ALS Scan in
`its newsgroups over the period of several months and that
`
`[t]hese newsgroups have apparently been created by individ-
`uals for the express sole purpose of illegally posting, trans-
`ferring and disseminating photographs that have been
`copyrighted by my client through both its websites and its
`CD-ROMs. The newsgroups, on their face from reviewing
`messages posted thereon, serve no other purpose.
`
`When correspondence between the parties progressed no further to
`resolution of the dispute, ALS Scan commenced this action, alleging
`violations of the Copyright Act and Title II of the DMCA, as well as
`unfair competition. In its complaint, ALS Scan alleged that RemarQ
`possessed actual knowledge that the newsgroups contained infringing
`material but had "steadfastly refused to remove or block access to the
`material." ALS Scan also alleged that RemarQ was put on notice by
`ALS Scan of the infringing material contained in its database. In addi-
`tion to injunctive relief, ALS Scan demanded actual and statutory
`damages, as well as attorneys fees. It attached to its complaint affida-
`vits establishing the essential elements of its claims.
`
`In response, RemarQ filed a motion to dismiss the complaint or, in
`the alternative, for summary judgment, and also attached affidavits,
`stating that RemarQ was prepared to remove articles posted in its
`newsgroups if the allegedly infringing articles were specifically iden-
`tified. It contended that because it is a provider of access to news-
`groups, ALS Scan’s failure to comply with the DMCA notice require-
`ments provided it with a defense to ALS Scan’s copyright infringe-
`ment claim.
`
`The district court ruled on RemarQ’s motion, stating, "[RemarQ’s]
`motion to dismiss or for summary judgment is treated as one to dis-
`miss and, as such, is granted." In making this ruling, the district court
`held: (1) that RemarQ could not be held liable for direct copyright
`infringement merely because it provided access to a newsgroup con-
`taining infringing material; and (2) that RemarQ could not be held lia-
`ble for contributory infringement because ALS Scan failed to comply
`
`

`
`ALS SCAN, INC. v. REMARQ COMMUNITIES, INC.
`
`5
`
`with the notice requirements set forth in the DMCA, 17 U.S.C.
`§ 512(c)(3)(A). This appeal followed.
`
`II
`
`ALS Scan contends first that the district court erred in dismissing
`its direct copyright infringement claim. It contends that it stated a
`cause of action for copyright infringement when it alleged (1) the
`"ownership of valid copyrights," and (2) RemarQ’s violation of its
`copyrights "by allowing its members access to newsgroups containing
`infringing material."1 See generally Keeler Brass Co. v. Continental
`Brass Co., 862 F.2d 1063, 1065 (4th Cir. 1988) (describing the
`requirements of a direct infringement claim). In rejecting ALS Scan’s
`direct infringement claim, the district court relied on the decision in
`Religious Technology Center v. Netcom On-Line Communication Ser-
`vices, Inc., 907 F. Supp. 1361, 1368-73 (N.D. Cal. 1995), which con-
`cluded that when an Internet provider serves, without human
`intervention, as a passive conduit for copyrighted material, it is not
`liable as a direct infringer. The Netcom court reasoned that "it does
`not make sense to adopt a rule that could lead to liability of countless
`parties whose role in the infringement is nothing more than setting up
`and operating a system that is necessary for the functioning of the
`Internet." Id. at 1372. That court observed that it would not be work-
`able to hold "the entire Internet liable for activities that cannot reason-
`ably be deterred." Id.; see also Marobie-FL, Inc. v. National Ass’n of
`Fire Equip. Distribs., 983 F. Supp. 1167, 1176-79 (N.D. Ill. 1997)
`(agreeing with Netcom’s reasoning). ALS Scan argues, however, that
`the better reasoned position, contrary to that held in Netcom, is pres-
`ented in Playboy Enterprises, Inc. v. Frena, 839 F. Supp. 1552, 1555-
`59 (M.D. Fla. 1993), which held a computer bulletin board service
`provider liable for the copyright infringement when it failed to pre-
`vent the placement of plaintiff’s copyrighted photographs in its sys-
`
`1It would appear that ALS Scan’s allegations amount more to a claim
`of contributory infringement in which a defendant, "with knowledge of
`the infringing activity, induces, causes or materially contributes to the
`infringing conduct of another," Gershwin Publ’g Corp. v. Columbia Art-
`ists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971), than to a claim of
`direct infringement.
`
`

`
`6
`
`ALS SCAN, INC. v. REMARQ COMMUNITIES, INC.
`
`tem, despite any proof that the provider had any knowledge of the
`infringing activities.
`
`Although we find the Netcom court reasoning more persuasive, the
`ultimate conclusion on this point is controlled by Congress’ codifica-
`tion of the Netcom principles in Title II of the DMCA. As the House
`Report for that Act states,
`
` The bill distinguishes between direct infringement and
`secondary liability, treating each separately. This structure
`is consistent with evolving case law, and appropriate in light
`of the different legal bases for and policies behind the differ-
`ent forms of liability.
`
` As to direct infringement, liability is ruled out for passive,
`automatic acts engaged in through a technological process
`initiated by another. Thus the bill essentially codifies the
`result in the leading and most thoughtful judicial decision to
`date: Religious Technology Center v. Netcom On-Line Com-
`munications Services, Inc., 907 F. Supp. 1361 (N.D. Cal.
`1995). In doing so, it overrules these aspects of Playboy
`Enterprises, Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla.
`1993), insofar as that case suggests that such acts by service
`providers could constitute direct infringement, and provides
`certainty that Netcom and its progeny, so far only a few dis-
`trict court cases, will be the law of the land.
`
`H.R. Rep. No. 105-551(I), at 11 (1998). Accordingly, we address only
`ALS Scan’s claims brought under the DMCA itself.
`
`III
`
`For its principal argument, ALS Scan contends that it substantially
`complied with the notification requirements of the DMCA and
`thereby denied RemarQ the "safe harbor" from copyright infringe-
`ment liability granted by that Act. See 17 U.S.C. § 512(c)(3)(A) (set-
`ting forth notification requirements). It asserts that because its
`notification was sufficient to put RemarQ on notice of its infringe-
`ment activities, RemarQ lost its service-provider immunity from
`
`

`
`ALS SCAN, INC. v. REMARQ COMMUNITIES, INC.
`
`7
`
`infringement liability. It argues that the district court’s application of
`the DMCA was overly strict and that Congress did not intend to per-
`mit Internet providers to avoid copyright infringement liability
`"merely because a cease and desist notice failed to technically comply
`with the DMCA."
`
`RemarQ argues in response that it did not have "knowledge of the
`infringing activity as a matter of law," stating that the DMCA protects
`it from liability because "ALS Scan failed to identify the infringing
`works in compliance with the Act, and RemarQ falls within the ‘safe
`harbor’ provisions of the Act." It notes that ALS Scan never provided
`RemarQ or the district court with the identity of the pictures forming
`the basis of its copyright infringement claim.
`
`These contentions of the parties present the issue of whether ALS
`Scan complied with the notification requirements of the DMCA so as
`to deny RemarQ the safe-harbor defense to copyright infringement
`liability afforded by that Act.
`
`Title II of the DMCA, designated the "Online Copyright Infringe-
`ment Limitation Act," DMCA, § 201, Pub. L. 105-304, 112 Stat. 2877
`(1998) (codified at 17 U.S.C. § 101 note), defines limitations of liabil-
`ity for copyright infringement to which Internet service providers
`might otherwise be exposed. The Act defines a service provider
`broadly to include any provider of "online services or network access,
`or the operator of facilities therefor," including any entity providing
`"digital online communications, between or among points specified
`by user, of material of the user’s choosing, without modification to
`the content of the material as sent or received." 17 U.S.C. § 512(k).
`Neither party to this case suggests that RemarQ is not an Internet ser-
`vice provider for purposes of the Act.
`
`The liability-limiting provision applicable here, 17 U.S.C. § 512(c),
`gives Internet service providers a safe harbor from liability for "in-
`fringement of copyright by reason of the storage at the direction of
`a user of material that resides on a system or network controlled or
`operated by or for the service provider" as long as the service pro-
`vider can show that: (1) it has neither actual knowledge that its system
`contains infringing materials nor an awareness of facts or circum-
`stances from which infringement is apparent, or it has expeditiously
`
`

`
`8
`
`ALS SCAN, INC. v. REMARQ COMMUNITIES, INC.
`
`removed or disabled access to infringing material upon obtaining
`actual knowledge of infringement; (2) it receives no financial benefit
`directly attributable to infringing activity; and (3) it responded expe-
`ditiously to remove or disable access to material claimed to be
`infringing after receiving from the copyright holder a notification
`conforming with requirements of § 512(c)(3). Id. § 512(c)(1).2 Thus,
`to qualify for this safe harbor protection, the Internet service provider
`must demonstrate that it has met all three of the safe harbor require-
`ments, and a showing under the first prong — the lack of actual or
`constructive knowledge — is prior to and separate from the showings
`that must be made under the second and third prongs.
`
`(1)
`
`2Section 512(c)(1) provides in full:
`(c)
`Information residing on systems or networks at direction of
`users.—
`In general.—A service provider shall not be liable for mon-
`etary relief, or, except as provided in subsection (j), for
`injunctive or other equitable relief, for infringement of
`copyright by reason of the storage at the direction of a user
`of material that resides on a system or network controlled
`or operated by or for the service provider, if the service
`provider—
`
`(A)(i) does not have actual knowledge that the material
`or an activity using the material on the system or network
`is infringing;
`
`(ii) in the absence of such actual knowledge, is not aware
`of facts or circumstances from which infringing activity is
`apparent; or
`
`(iii) upon obtaining such knowledge or awareness, acts
`expeditiously to remove, or disable access to, the material;
`
`(B) does not receive a financial benefit directly attribut-
`able to the infringing activity, in a case in which the service
`provider has the right and ability to control such activity;
`and
`infringement as
`
`(C) upon notification of claimed
`described in paragraph (3), responds expeditiously to
`remove, or disable access to, the material that is claimed to
`be infringing or to be the subject of infringing activity.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`ALS SCAN, INC. v. REMARQ COMMUNITIES, INC.
`
`9
`
`In this case, the district court evaluated the adequacy given to
`RemarQ under the third prong only. Despite the fact the district court
`stated it was treating RemarQ’s motion as a motion to dismiss, rather
`than as a motion for summary judgment, the court’s memorandum
`opinion fails to mention the allegation made in ALS Scan’s complaint
`that RemarQ had actual knowledge of the infringing nature of the two
`subject newsgroups even before being contacted by ALS Scan, an
`allegation denied by RemarQ. Clearly, had the court truly been evalu-
`ating ALS Scan’s complaint under a 12(b)(6) standard of review, it
`would necessarily have had to accept ALS Scan’s allegation as
`proven for purposes of testing the adequacy of the complaint, see
`Eastern Shore Markets, Inc. v. J.D. Assoc. Ltd. P’ship, 213 F.3d 175,
`180 (4th Cir. 2000), and consequently been required to rule in favor
`of ALS Scan under the first prong.
`
`Even if we were to treat the district court’s order as disposing of
`a motion for summary judgment, and not a motion to dismiss, the
`court still could not, as a matter of law, have resolved the conflicting
`affidavits about actual knowledge. Resolving whether the court actu-
`ally treated the motion as one to dismiss or for summary judgment is
`not necessary, however, because we conclude that ALS Scan substan-
`tially complied with the third prong, thereby denying RemarQ its safe
`harbor defense.
`
`In evaluating the third prong, requiring RemarQ to remove materi-
`als following "notification," the district court concluded that ALS
`Scan’s notice was defective in failing to comply strictly with two of
`the six requirements of a notification — (1) that ALS Scan’s notice
`include "a list of [infringing] works" contained on the RemarQ site
`and (2) that the notice identify the infringing works in sufficient detail
`to enable RemarQ
`to
`locate and disable
`them. 17 U.S.C.
`§ 512(c)(3)(A)(ii), (iii).3
`
`3Section 512(c)(3)(A)(ii), (iii) provides:
`(3) Elements of notification.—
`
`(A) To be effective under this subsection, a notification of
`claimed infringement must be a written communication provided
`to the designated agent of a service provider that includes sub-
`stantially the following:
`
`

`
`10
`
`ALS SCAN, INC. v. REMARQ COMMUNITIES, INC.
`
`In support of the district court’s conclusion, RemarQ points to the
`fact that ALS Scan never provided it with a "representative list" of the
`infringing photographs, as required by § 512(c)(3)(A)(ii), nor did it
`identify those photographs with sufficient detail to enable RemarQ to
`locate and disable them, as required by § 512(c)(3)(A)(iii). RemarQ
`buttresses its contention with the observation that not all materials at
`the offending sites contained material to which ALS Scan held the
`copyrights. RemarQ’s affidavit states in this regard:
`
`Some, but not all, of the pictures users have posted on these
`sites appear to be ALS Scan pictures. It also appears that
`users have posted other non-ALS Scan’s erotic images on
`these newsgroups. The articles in these newsgroups also
`contain text messages, many of which discuss the adult
`images posted on the newsgroups.
`
`ALS Scan responds that the two sites in question — "alt.als" and
`"alt.binaries.pictures.erotica.als" — were created solely for the pur-
`pose of publishing and exchanging ALS Scan’s copyrighted images.
`It points out that the address of the newsgroup is defined by ALS
`Scan’s name. As one of its affidavits states:
`
`[RemarQ’s] subscribers going onto the two offending news-
`groups for the purpose of violating [ALS Scan’s] copy-
`rights, are actually aware of the copyrighted status of [ALS
`Scan’s] material because (1) each newsgroup has "als" as
`part of its title, and (2) each photograph belonging to [ALS
`
` *
` *
`*
`(ii) Identification of the copyrighted work claimed to have
`been infringed, or, if multiple copyrighted works at a single
`online site are covered by a single notification, a representa-
`tive list of such works at that site.
`(iii) Identification of the material that is claimed to be
`infringing or to be the subject of infringing activity and that
`is to be removed or access to which is to be disabled, and
`information reasonably sufficient to permit the service pro-
`vider to locate the material.
`
`

`
`ALS SCAN, INC. v. REMARQ COMMUNITIES, INC.
`
`11
`
`Scan] has [ALS Scan’s] name and/or the copyright symbol
`next to it.
`
` Each of these two newsgroups was created by unknown
`persons for the illegal purpose of trading the copyrighted
`pictures of [ALS Scan] to one another without the need for
`paying to either (1) become members of [ALS Scan’s] web
`site(s) or (2) purchasing the CD-ROMs produced by [ALS
`Scan].
`
`ALS Scan presses the contention that these two sites serve no other
`purpose than to distribute ALS Scan’s copyrighted materials and
`therefore, by directing RemarQ to these sites, it has directed RemarQ
`to a representative list of infringing materials.
`
`The DMCA was enacted both to preserve copyright enforcement
`on the Internet and to provide immunity to service providers from
`copyright infringement liability for "passive," "automatic" actions in
`which a service provider’s system engages through a technological
`process initiated by another without the knowledge of the service pro-
`vider. H.R. Conf. Rep. No. 105-796, at 72 (1998), reprinted in 1998
`U.S.C.C.A.N. 649; H.R. Rep. No. 105-551(I), at 11 (1998). This
`immunity, however, is not presumptive, but granted only to "inno-
`cent" service providers who can prove they do not have actual or con-
`structive knowledge of the infringement, as defined under any of the
`three prongs of 17 U.S.C. § 512(c)(1). The DMCA’s protection of an
`innocent service provider disappears at the moment the service pro-
`vider loses its innocence, i.e., at the moment it becomes aware that
`a third party is using its system to infringe. At that point, the Act
`shifts responsibility to the service provider to disable the infringing
`matter, "preserv[ing] the strong incentives for service providers and
`copyright owners to cooperate to detect and deal with copyright
`infringements that take place in the digital networked environment."
`H.R. Conf. Rep. No. 105-796, at 72 (1998), reprinted in 1998
`U.S.C.C.A.N. 649. In the spirit of achieving a balance between the
`responsibilities of the service provider and the copyright owner, the
`DMCA requires that a copyright owner put the service provider on
`notice in a detailed manner but allows notice by means that comport
`with the prescribed format only "substantially," rather than perfectly.
`The Act states: "To be effective under this subsection, a notification
`
`

`
`12
`
`ALS SCAN, INC. v. REMARQ COMMUNITIES, INC.
`
`of claimed infringement must be a written communication provided
`to the designated agent of a service provider that includes substan-
`tially the following . . . ." 17 U.S.C. § 512(c)(3)(A) (emphasis added).
`In addition to substantial compliance, the notification requirements
`are relaxed to the extent that, with respect to multiple works, not all
`must be
`identified — only a "representative"
`list. See
`id.
`§ 512(c)(3)(A)(ii). And with respect to location information, the
`copyright holder must provide information that is "reasonably suffi-
`cient" to permit the service provider to "locate" this material. Id.
`§ 512(c)(3)(A)(iii) (emphasis added). This subsection specifying the
`requirements of a notification does not seek to burden copyright hold-
`ers with the responsibility of identifying every infringing work — or
`even most of them — when multiple copyrights are involved. Instead,
`the requirements are written so as to reduce the burden of holders of
`multiple copyrights who face extensive infringement of their works.
`Thus, when a letter provides notice equivalent to a list of representa-
`tive works that can be easily identified by the service provider, the
`notice substantially complies with the notification requirements.
`
`In this case, ALS Scan provided RemarQ with information that (1)
`identified two sites created for the sole purpose of publishing ALS
`Scan’s copyrighted works, (2) asserted that virtually all the images at
`the two sites were its copyrighted material, and (3) referred RemarQ
`to two web addresses where RemarQ could find pictures of ALS
`Scan’s models and obtain ALS Scan’s copyright information. In addi-
`tion, it noted that material at the site could be identified as ALS
`Scan’s material because the material included ALS Scan’s "name
`and/or copyright symbol next to it." We believe that with this infor-
`mation, ALS Scan substantially complied with the notification
`requirement of providing a representative list of infringing material as
`well as information reasonably sufficient to enable RemarQ to locate
`the infringing material. To the extent that ALS Scan’s claims about
`infringing materials prove to be false, RemarQ has remedies for any
`injury it suffers as a result of removing or disabling noninfringing
`material. See 17 U.S.C. § 512(f), (g).
`
`Accordingly, we reverse the district court’s ruling granting sum-
`mary judgment in favor of RemarQ on the basis of ALS Scan’s non-
`compliance with
`the notification provisions of 17 U.S.C.
`§ 512(c)(3)(A)(ii) and (iii). Because our ruling only removes the safe
`
`

`
`ALS SCAN, INC. v. REMARQ COMMUNITIES, INC.
`
`13
`
`harbor defense, we remand for further proceedings on ALS Scan’s
`copyright infringement claims and any other affirmative defenses that
`RemarQ may have.
`
`IV
`
`ALS Scan also appeals the district court’s decision not to enter
`summary judgment on its behalf with respect to its infringement
`claim. Because there is a dispute as to several material facts, however,
`we affirm the district court’s ruling on ALS Scan’s motion for sum-
`mary judgment. If ALS Scan is able to prove that in fact the offending
`newsgroups’ "sole purpose" is infringement of ALS Scan’s copy-
`rights, it may be entitled to a remedy. However, because it is con-
`tested both that such is, in fact, the "sole" purpose of the newsgroups,
`and that "virtually all" the images posted in the newsgroups are
`infringing, we are unable to come to any legal conclusions. Final dis-
`position must await further development of the record and further pro-
`ceedings.
`
`V
`
`Accordingly, for the reasons given, we reverse the district court’s
`decision to grant summary judgment in favor of RemarQ, affirm the
`district court’s decision not to grant summary judgment in favor of
`ALS Scan, and remand this case for further proceedings consistent
`with this opinion.
`
`AFFIRMED IN PART, REVERSED
`IN PART, AND REMANDED