Vol 7 No 1 - Roger Williams University School of Law

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holder.92 Contributory liability applies to any person who, withknowledge of the infringing activity, “induces, causes or materiallycontributes to the infringing conduct of another.”93 Vicariousliability has been held to exist when the subject of a copyrightinfringement suit both exercised the right and ability to supervisethe primary infringer and had a direct financial interest in theexploitation of copyrighted materials.94Direct and vicarious copyright infringers are subject to strictliability for their offenses, regardless of their intent or knowledgeat the time of the violation.95 Even innocent copyrightinfringements are subject to strict liability under these twostandards.96 Contributory infringement, however, depends on thecontributor’s actual or constructive knowledge that a copyrightviolation is taking place.97 In assessing the appropriate level ofliability facing an ISP in a particular factual situation, one mustlook at the provider’s actions to determine whether the role of theprovider is one of direct involvement in the unauthorized use. Ifthe provider’s role is not direct, then one must consider whetherthe provider has sufficient knowledge and involvement to becontributorily liable or, alternatively, whether the provider exertsenough control and derives financial benefit from the infringementso as to be vicariously liable.98A. Copyright Liability of ISPs Before the DMCAThe first case in the United States dealing with the subject ofonline service provider liability for third-party copyrightinfringement was Playboy Enterprises v. Frena.99 Here, Playboysued George Frena, the operator of an online bulletin boardservice, for copyright infringement, claiming that copyrightedPlayboy photographs had been posted on Frena’s service without92. See id.93. Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162(2d Cir. 1971). See also Yen, supra note 24, at 1843-44.94. See Gershwin Publ’g, 443 F.2d at 1162; see also Yen, supra note 24, at 1843-44.95. See Irina Y. Dmitrieva, I Know It When I See It: Should Internet ProvidersRecognize Copyright Violation When They See It?, 16 Santa Clara Computer & HighTech. L.J. 233, 235 (2000).96. See id. at 236.97. See id.98. See Keller, supra note 90, at 241.99. 839 F. Supp. 1552 (M.D. Fla. 1993).
authorization.100 Frena defended himself by claiming that thecopyrighted pictures had been uploaded to his bulletin board byindividual subscribers without his knowledge, and that heremoved the photographs as soon as he received notification fromPlayboy.101 The court found that the pictures in question were infact the copyrighted property of Playboy, and that in someinstances these copyrighted photographs had been displayed in analtered form on Frena’s service, such that Playboy’s trademarkswere replaced with Frena’s own advertisements.102 From thispromotional alteration, the court concluded that Frena hadproduced a “product” containing infringing material, and haddirectly violated both the distribution and display rights that werereserved to Playboy.103 Further, the court disregarded Frena’slack of knowledge defense, holding Frena strictly liable for theinfringement.104Two years after Frena was decided, another court evaluatedthe liability of bulletin board operators and Internet serviceproviders for third-party acts of infringement. In ReligiousTechnology Center v. Netcom On-Line Communication Services,Inc.,105 the Church of Scientology sued Dennis Erlich, a formerscientologist minister, for his unauthorized posting of copyrightedchurch materials on a Usenet bulletin board.106 Also joined in thesuit were Klemesrud, the bulletin board operator managing theboard Erlich used to display the messages, and Netcom, Inc., theISP connecting Klemesrud’s bulletin board to the Internet.107 TheChurch joined Netcom and Klemesrud after it notified both partiesof the infringing activities, and both the ISP and the bulletinboard operator refused to remove the postings without a showingof proof that they actually contained infringing material.108 Afterreviewing both the Frena decision and other persuasive caselaw,109 the court granted summary judgment in favor of Netcom100. See id. at 1554.101. See id.102. See id. at 1556.103. See id.104. See Frena, 839 F. Supp. at 1558.105. 907 F. Supp. 1361 (N.D. Cal. 1995).106. See id. at 1365.107. See id.108. See id. at 1366.109. See id. at 1371 (discussing Sega Enterprises Ltd. v. MAPHIA, 857 F. Supp.679 (N.D. Cal. 1994)).
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ROGER WILLIAMS UNIVERSITYLAW REVIEW
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ROGER WILLIAMS UNIVERSITYSCHOOL OF
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Identification StatementThe Roger W
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contract exclusion or disclaimer of
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and other laws of countries in whic
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Symposium and writes on this issue
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Indeed, the quotation contains the
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suggestive of a bill designed merel
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United States ought to adopt in lig
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the Supreme Court to reiterate in F
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United States Supreme Court quoted
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copying of “a work protected unde
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shall be null and void.65 Member st
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determining the fate of database pr
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The compilation of a database requi
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management information, including c
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one congressional witness noted:
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that were made after the initial te
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preferred language of many business
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the sui generis right mainly serves
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the Paris Convention for the Protec
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directly or indirectly.159 In other
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of resources that qualifies that po
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wish to encourage private lawsuits,
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contract.”185 While section 1405(
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The Directive will inevitably drive
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the process through which digital p
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the United States or the trade and
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patent law is the utilitarian ethic
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a work to be publicly identified as
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the United States, the power of the
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Theory one proposes to reward the a
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of intellectual property rights mus
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only such as are original, and are
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emedies set forth in section 1406.T
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eproduced, though there be no ingen
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the same, or substantially the same
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with respect to “patents of inven
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Because, in part of the joint reaso
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even by the plaintiffs today.86The
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statute: the “Limited Times” re
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head of power. It is not clear whet
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elationship of power between the Co
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history dealing with either provisi
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the parameters of the propertizatio
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the legislative power contained in
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negative pregnant that suggests tha
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scope of the Commerce Clause in the
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gave incentive for people to expres
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ejected this purported distinction
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talk, communicate or consume inform
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frameworks that will allow diversit
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that a monopolist should not seek t
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motivating force.While antitrust or
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unjustifiable anti-competitive cond
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his refusal to sell or license his
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defense and exploitation of the cop
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the information age there have been
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In response to Intel’s argument t
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Court of First Instance in concludi
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to oust competitors, there was noth
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as a digital property owner, which
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anti-competitive use of monopoly po
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certain circumstances, exempted fro
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for circumventing a technological p
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DMCA creates an exclusive right in
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circumventing a TPM in order to loo
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“staple article of commerce” do
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commerce.”320 Is innovation stifl
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anner advertisement company DoubleC
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the subject. Demographic informatio
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important to know whether a contrac
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information rights and legislated c
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this value is difficult to apportio
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Association (WIPO) will administer
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the new environment.For example, th
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implemented. As this section will h
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ight. First sale is an important di
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sign a hard copy contract containin
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to digital property. As well, free
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desirable to sellers and buyers ali
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ural and remote areas, where access
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as “high-speed telecommunications
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decrease innovation.30 On the other
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could be called a trespass, since a
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inform what permissible access and
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Universal Music Group uses software
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Taking UCITA on the Road: WhatLesso
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the debate has centered on whether
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It is against this background that
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similarities as well as differences
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as well, such as the American Bar A
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Page 212 and 213: worth a thousand words. Picture a d
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Page 220 and 221: Other Substantive IssuesThere are,
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Page 228 and 229: acts of copyright infringement.7 Un
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Page 262 and 263: II. CONSTITUTIONAL ANALYSISA. Const
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