Advanced Copyright Issues on the Internet - Fenwick & West LLP

was sufficient for direct infringement of the display right. The court also rejected thedefendants’ argument that the images could not be “copies” of the physical copyrightedmerchandise. Accordingly, the court denied the defendants’ motion for JMOL as to directinfringement. 11462. Contributory LiabilityA party may be liable for contributory infringement where “with knowledge of theinfringing activity, [it] induces, causes or materially contributes to the infringing activity ofanother.” 1147 The standard of knowledge is objective: to know or have reason to know that thesubject matter is copyrighted and that the particular uses were violating copyright law. 1148 Forliability for contributory infringement, there must be a direct infringement 1149 to which thecontributory infringer has knowledge and encourages or facilitates.The requirement of knowledge may eliminate contributory liability on the part of an OSPor BBS operator with respect to many instances of infringement for which the OSP or BBS ismerely a passive information conduit and has no knowledge of the infringement. However,given knowledge (or reason to know), a number of cases suggest that a system provider cannotsimply continue to provide the facility that enables infringement.(a) The Netcom CaseIn Religious Technology Center v. Netcom On-Line Communication Services, 1150 thecourt held that the OSP Netcom could be contributorily liable for infringing postings by anindividual named Erlich of copyrighted religious materials to Usenet through the provider afterthe service was given notice of the infringing material. “If plaintiffs can prove the knowledgeelement, Netcom will be liable for contributory infringement since its failure to simply cancelErlich’s infringing message and thereby stop an infringing copy from being distributedworldwide constitutes substantial participation in Erlich’s public distribution of the message.” 1151The court held that the copyright notices in the posted works were sufficient to give Netcomnotice that the works were copyrighted. 11521146 Akanoc, 2010 U.S. Dist. LEXIS 85266 at *11-15.1147 E.g., Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971);Cable/Home Communications Corp. v. Network Prods., Inc., 902 F.2d 829, 845 (11th Cir. 1990).1148 R. Nimmer, Information Law 4.11, at 4-40 (2001); see also Sega Enterprises Ltd. v. MAPHIA, 948 F. Supp.923, 933 (N.D. Cal. 1996) (“The standard for the knowledge requirement is objective, and is satisfied where thedefendant knows or has reason to know of the infringing activity.”) (citing Casella v. Morris, 820 F.2d 362, 365(11th Cir. 1987)).1149 Given the ubiquitous nature of copies on the Internet and the strength of the copyright holder’s other rightsdiscussed in this paper, establishing a direct infringement in a network transmission should not be difficult.1150 907 F. Supp. 1361 (N.D. Cal. 1995).1151 Id. at 1374.1152 Id.- 264 -