Advanced Copyright Issues on the Internet - Fenwick & West LLP

downloads. “She provided the facilities for copying the games by providing, monitoring, andoperating the BBS software, hardware, and phone lines necessary for the users to upload anddownload games.” 80 Accordingly, she was liable for contributory infringement under theFonovisa standard. 81The court went further, however, holding that even an alternative and higher standard of“substantial participation,” Sabella was liable. “Sabella did more than provide the site andfacilities for the known infringing conduct. She provided a road map on the BBS for easyidentification of Sega games available for downloading.” 82 The court also rejected Sabella’s fairuse defense, issued a permanent injunction against Sabella, and awarded Sega statutory damagesof $5,000 per infringed work.In contrast to the preceding cases, several cases have held that where a defendant BBSoperator has a more direct participation in the acts of infringement of its subscribers or users,there can be direct infringement liability for those acts:(d) The Frena CasePlayboy Enterprises, Inc. v. Frena, 83 decided before Netcom, MAPHIA and Sabella,goes further than those cases and established liability for the acts of subscribers without a directvolitional act on the part of the operator. In that case, the court held the operator of a BBS,Frena, responsible for infringement of the rights of distribution and display (although curiouslynot the right of reproduction) with respect to the plaintiff’s copyrighted photographs, which weredistributed and displayed through the bulletin board by subscribers, despite evidence that theoperator never himself uploaded any of the photographs onto the bulletin board and removed thephotographs as soon as he was made aware of them. 84 “There is no dispute that DefendantFrena supplied a product containing unauthorized copies of a copyrighted work. It does notmatter that Defendant Frena claims he did not make the copies [himself].” 85 Although the casedid not generate a finding of liability with respect to the right of reproduction, the court’s logicwith respect to finding infringement of the rights of distribution and display would seem to applyto the reproduction right as well.808182838485Sabella, 1997 Copyr. Law. Dec. 27,648 at 29,849.Another recent case applied the Fonovisa standard to hold the defendant Cyrix Corporation liable forcontributory infringement for posting on its website some copyrighted applet software of the plaintiff fromwhich it could be downloaded for use with the defendant’s sound boards. “Cyrix is probably alsocontributorily liable because it encouraged and provided the resources for known infringing activity, i.e. thecopying by others of the applet software that Cyrix made available on its website.” Creative Labs, Inc. v. CyrixCorp., 42 U.S.P.Q.2d 1872, 1875-76 (N.D. Cal. 1997).Sabella, 1997 Copyr. Law. Dec. 27,648 at 29,849.839 F. Supp. 1552 (M.D. Fla. 1993).Id. at 1554.Id. at 1556.- 33 -