Religious Technology Center v. Netcom
a. Facts: Scientology case - P is suing D for not taking down the religious published and unpublished documents of L. Ron Hubbard. P contacted the internet service provider for UseNet to have them take down the postings, but UseNet refused to do so saying it was too difficult.
b. Procedural History: the court granted in part and denied in part Netcom’s motion for summary judgment and Klemesrud’s motion for judgment on the pleadings and denies P’s motion for a preliminary injunction.
c. Issue: whether the operator of a computer bulletin board service, and the large internet access provider that allows BBS to reach the internet, should be liable for copyright infringement committed by a subscriber of the BBS.
d. Reason: Ehrlich copying the server does not make Netcom liable b/c they took no part in the action of copying.
e. Direct infringement: infringement consists of unauthorized exercise of one of the exclusive rights of the copyright holder. It does not require intent or state of mind.
i. Creation of fixed copies: even though the messages were on their systems for at most 11 days, they were sufficiently fixed to constitute recognizable copies under the Copyright Act.
ii. Is Netcom directly liable for making the copies?
1. Netcom did not take any affirmative action that directly resulted in copying P's works other than by installing and maintaining a system whereby software automatically forwards messages received from subscribers onto the Usenet, and temporarily stores copies on its system
2. Held: Netcom did not initiate the copying.
a. Holding them liable would create a parade of horribles, allowing for many separate acts of infringement leading to unreasonable liability.
3. Whether a D makes a direct copy that constitutes infringement cannot depend on whether it received a warning to delete the message.
iii. Public distribution and display?
1. Only the subscriber should be liable for causing the distribution of P's work, as the contributing actions of the BBS provider are automatic and indiscriminate.
2. Where the bulletin service merely stores and passes along messages sent by its subscribers and others, the BBS should not be seen as causing these works to be publicly distributed or displayed.
3. Netcom doesn't create or control the content of the information available. It just provides access to the internet.
iv. Held: no direct liability for Netcom
f. Contributory infringement:
i. Rule: liability for participation in the infringement will be established where the D, w/ knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another.
ii. Knowledge of infringing activity: Netcom only leases space but also serves as an access provider, which includes the storage and transmission of information necessary to facilitate Erlich's postings.
1. Whether Netcom actually had knowledge of the infringement taking place or before it took place is a question of material fact
2. Netcom couldn't have known before it got notice
iii. Substantial participation:
1. Rule: where a D has knowledge of the primary infringer's infringing activities, it will be liable if it induces, causes, or materially contributes to the infringing conduct of the primary infringer. Participation must be substantial
2. It is for the jury to decide whether Netcom could reasonably prevent the copyrighted postings
g. Vicarious liability:
i. Rule: a D is liable for the actions of a primary infringer where the D has the right and ability to control the infringer's acts and receives a direct financial benefit from the infringement. Knowledge is not an element.
ii. Right and ability to control: Netcom did have the ability to control b/c it could kick users off for violations, so there was an issue of fact about whether it can cut off infringing users or have software for a filter
iii. Direct financial benefit:
1. Rule: where a D rents space or services on a fixed rental fee that does not depend on the nature of the activity of the lessee, courts usually find no vicarious liability b/c there is no direct financial benefit from the infringement
2. P cannot provide any evidence of a direct financial benefit received by Netcom from Erlich's postings.
3. Netcom's fees are fixed.
h. Held: the only viable theory of infringement was contributory infringement and the court saw little evidence that Netcom knew or should have known that Erlich was engaged in copyright infringement of P's works and was not entitled to a fair use defense. P’s claims of direct and vicarious infringement fail.
a. Facts: Scientology case - P is suing D for not taking down the religious published and unpublished documents of L. Ron Hubbard. P contacted the internet service provider for UseNet to have them take down the postings, but UseNet refused to do so saying it was too difficult.
b. Procedural History: the court granted in part and denied in part Netcom’s motion for summary judgment and Klemesrud’s motion for judgment on the pleadings and denies P’s motion for a preliminary injunction.
c. Issue: whether the operator of a computer bulletin board service, and the large internet access provider that allows BBS to reach the internet, should be liable for copyright infringement committed by a subscriber of the BBS.
d. Reason: Ehrlich copying the server does not make Netcom liable b/c they took no part in the action of copying.
e. Direct infringement: infringement consists of unauthorized exercise of one of the exclusive rights of the copyright holder. It does not require intent or state of mind.
i. Creation of fixed copies: even though the messages were on their systems for at most 11 days, they were sufficiently fixed to constitute recognizable copies under the Copyright Act.
ii. Is Netcom directly liable for making the copies?
1. Netcom did not take any affirmative action that directly resulted in copying P's works other than by installing and maintaining a system whereby software automatically forwards messages received from subscribers onto the Usenet, and temporarily stores copies on its system
2. Held: Netcom did not initiate the copying.
a. Holding them liable would create a parade of horribles, allowing for many separate acts of infringement leading to unreasonable liability.
3. Whether a D makes a direct copy that constitutes infringement cannot depend on whether it received a warning to delete the message.
iii. Public distribution and display?
1. Only the subscriber should be liable for causing the distribution of P's work, as the contributing actions of the BBS provider are automatic and indiscriminate.
2. Where the bulletin service merely stores and passes along messages sent by its subscribers and others, the BBS should not be seen as causing these works to be publicly distributed or displayed.
3. Netcom doesn't create or control the content of the information available. It just provides access to the internet.
iv. Held: no direct liability for Netcom
f. Contributory infringement:
i. Rule: liability for participation in the infringement will be established where the D, w/ knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another.
ii. Knowledge of infringing activity: Netcom only leases space but also serves as an access provider, which includes the storage and transmission of information necessary to facilitate Erlich's postings.
1. Whether Netcom actually had knowledge of the infringement taking place or before it took place is a question of material fact
2. Netcom couldn't have known before it got notice
iii. Substantial participation:
1. Rule: where a D has knowledge of the primary infringer's infringing activities, it will be liable if it induces, causes, or materially contributes to the infringing conduct of the primary infringer. Participation must be substantial
2. It is for the jury to decide whether Netcom could reasonably prevent the copyrighted postings
g. Vicarious liability:
i. Rule: a D is liable for the actions of a primary infringer where the D has the right and ability to control the infringer's acts and receives a direct financial benefit from the infringement. Knowledge is not an element.
ii. Right and ability to control: Netcom did have the ability to control b/c it could kick users off for violations, so there was an issue of fact about whether it can cut off infringing users or have software for a filter
iii. Direct financial benefit:
1. Rule: where a D rents space or services on a fixed rental fee that does not depend on the nature of the activity of the lessee, courts usually find no vicarious liability b/c there is no direct financial benefit from the infringement
2. P cannot provide any evidence of a direct financial benefit received by Netcom from Erlich's postings.
3. Netcom's fees are fixed.
h. Held: the only viable theory of infringement was contributory infringement and the court saw little evidence that Netcom knew or should have known that Erlich was engaged in copyright infringement of P's works and was not entitled to a fair use defense. P’s claims of direct and vicarious infringement fail.