Advanced Copyright Issues on the Internet - Fenwick & West LLP

loaded the original copies of the software onto Sprint computers and then rebooted thecomputers, thereby causing the RAM copies. 170(q) Summary of Case LawIn sum, under a majority of the cases decided to date, a direct volitional act of some kindis required for liability for direct copyright infringement. The MAPHIA and Sabella casessuggest that it is insufficient for direct liability for an actor such as a BBS operator to haveprovided only encouragement of the acts (such as initial uploading of unauthorized copies) thatlead to infringement. Similarly, the CoStar, Ellison and Perfect 10 v. Cybernet Ventures casessuggest that an OSP will not have direct liability for infringing material posted on its service byusers or available through its service on third party sites where the OSP has not encouraged suchposting or had advance knowledge of it. And the Field v. Google and Parker v. Google caseshold that a search engine operator will not have direct liability for serving up cached copies ofcopyrighted materials in an automated response to user requests based on search results. Rather,for direct liability the defendant must have engaged in the very acts of infringement themselvesin a volitional way.However, the Frena, Webbworld and Sanfilippo cases (as well as the Hardenburgh andWebbworld cases discussed in Section II.C below with respect to the public display anddistribution rights) suggest that where an actor such as a BBS operator or website operator hassome form of direct involvement in the anticipated acts that lead to infringement or in theinfringing acts themselves (such as resale of the infringing material), there may be a finding ofsufficient volitional activity to impose direct liability. And the Arista Records v. Usenet.comcase suggests that direct liability for violation of the distribution right can be premised on activepromotion of sharing of illicit files coupled with close control over what types of material arefeatured for distribution in the first instance. Thus, to establish direct liability for infringementone must look at whether the defendant participated in the very acts of infringement themselves.As discussed in Section III.C below, the Digital Millennium <strong>Copyright</strong> Act 171 (referred toherein as the “DMCA”) defines certain safe harbors against liability for OSPs who act as merelypassive conduits for infringing information and without knowledge of the infringement. An OSPmust meet quite specific detailed requirements to qualify for the safe harbors relating to acting asa passive conduit and innocent storage of infringing information. Where an OSP does notqualify for these safe harbors, the standards under the case law discussed above will apply todetermine liability.5. The Reproduction Right Under WIPO Implementing Legislation(a) United States LegislationFour bills were introduced in Congress to implement the WIPO treaties. Two of them,neither of which were ultimately enacted, would have attempted to clarify the issue of whether170171Id. at *1-3 & 15-18.Pub. L. No. 105-304, 112 Stat. 2860 (1998).- 49 -