Advanced Copyright Issues on the Internet - Fenwick & West LLP

C. Liability of Online Service ProvidersMuch of the Internet copyright debate in recent years has centered around the issue ofcopyright liability of OSPs, BBS operators, system operators, and other service providers forinfringing activities taking place through their facilities. Indeed, to date, almost all of thereported Internet copyright decisions have centered around the issue of liability of OSPs andBBS operators. <strong>Copyright</strong> owners have sought to hold OSPs and BBS operators liable ontheories of direct liability, contributory liability, and vicarious liability. This Section discusseseach of these three theories in turn and the cases raising those theories that have been decided todate involving the Internet. This Section also discusses the relevant provisions of the DMCAthat limit the liability of OSPs for the infringing acts of third parties committed through theironline services.1. Direct LiabilityAs discussed in detail in Section II.A.4 above, a majority of the cases decided to dateseem to require that there be some kind of a direct volitional act in order to establish directinfringement liability on the part of an OSP or BBS for infringing postings and unauthorizeduses by users. For example, the Netcom court refused to hold an OSP directly liable forautomatic pass through of allegedly infringing messages posted to Usenet by a subscriber. 1133The subsequent MAPHIA case 1134 and the Sabella case 1135 extended the logic of Netcom,refusing to hold liable as a direct infringer the operator of a BBS for the uploading anddownloading by subscribers of unauthorized copies of Sega’s videogames through the BBS, eventhough the operator encouraged the initial uploading, because the operator had not participatedin the very acts of uploading or downloading themselves. And the CoStar, 1136 Ellison, 1137 andPerfect 10 v. Cybernet Ventures 1138 cases suggest that an OSP will not have direct liability forinfringing material posted on its service by users or available through its service on third partysites where the OSP has not encouraged such posting or had advance knowledge of it.The logic of the Ninth Circuit’s decision in Subafilms, Ltd. v. MGM-PatheCommunications Co. 1139 also suggests there should not be direct liability for persons who merelyplace material on a network for subsequent unauthorized copying, display, performance or thelike. Subafilms held that no independent “right of authorization” was created by the copyrightstatute’s reference in Section 106 of the exclusive right “to do or to authorize” the actsenumerated therein. Rather, the reference to “authorize” was meant only to establish potential1133 Religious Technology Center v. Netcom On-Line Communications Servs., 907 F. Supp. 1361 (N.D. Cal. 1995).1134 Sega Enterprises Ltd. v. MAPHIA, 948 F. Supp. 923 (N.D. Cal. 1996).1135 Sega Enterprises Ltd. v. Sabella, 1997 Copyr. Law. Dec. 27,648 (N.D. Cal. Dec. 18, 1996).1136 CoStar v. Loopnet, 164 F. Supp. 2d 688 (D. Md. 2001), aff’d, 373 F.3d 544 (4 th Cir. 2004).1137 Ellison v. Robertson, 189 F. Supp. 2d 1051 (C.D. Cal. 2002), aff’d in part and rev’d in part, 357 F.3d 1072 (9thCir. 2004).1138 Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D. Cal. 2002).1139 24 F.3d 1088 (9th Cir. 1994).- 262 -