There's some precedent for newsgroup providers finding shelter in the DMCA's Safe Harbor. In 2000, author Harlan Ellison filed a lawsuit against Stephen Robertson, who allegedly posted a number of Ellison's works to alt.binaries.e-book. One of the codefendants was AOL, which provides Usenet access to its subscribers. AOL argued that it was not liable for infringement due to the Safe Harbor provision, and the Ninth Circuit Court of Appeals agreed. One of the factors in the decision, however, was AOL's 14-day retention policy, which the court deemed was sufficient to qualify for the DMCA's "transitory communications" Safe Harbor protection. AOL later lost that protection, however, when it was discovered that the ISP went months without checking the infringement notification inbox.

This agrees with what I've said earlier about usenet providers being deemed a safe harbor.

The Recording Industry Association of America is suing usenet.com, decrying it as the next Napster, Kazaa and other peer-to-peer, illicit file-sharing sites.

"Defendant provides essentially the same functionality that P2P services such as Napster, Aimster, Grokster and Kazaa did (prior to being enjoined by the federal courts) -- knowingly providing the site and facilities for users to upload and download copyrighted works -- except that defendant goes further than even the P2P services to facilitate and encourage copyright infringement by its users," said the lawsuit in U.S. District Court for the Southern District of New York. "Defendant customizes its service to make it as convenient and seamless as possible for subscribers to distribute and obtain copyrighted music without authorization and without paying for that music."

The suit (huge .pdf), comes two weeks after the RIAA won its first pirating jury trial targeting an individual. A Duluth, Minnesota jury ordered Jammie Thomas to pay the RIAA $222,000 for pirating 24 songs on the Kazaa system in 2005.

Except that, as Ellison v. Robertson confirmed, usenet providers are a safe harbor under 17 USC §512(a). (Except when you change your email address, in which case, the courts will hold you "out as an example to prevent future willful blindness on the part of ISPs.")

Local copy of RIAA's Complaint against Usenet.com.