Advanced Copyright Issues on the Internet - Fenwick & West LLP

although the court noted that the OSP might be liable for contributory infringement, dependingupon whether the OSP knew that any material on NAFED’s Web page was copyrighted, when itlearned of that fact, and the degree to which the OSP monitored, controlled, or had the ability tomonitor or control the contents of NAFED’s Web page. 263And in Playboy Enterprises, Inc. v. Hardenburgh, 264 the defendants operated a BBSwhich made available graphic image files to subscribers for a fee, many of which contained adultmaterial. To increase its stockpile of available information, and thereby its attractiveness to newcustomers, defendants provided an incentive to encourage subscribers to upload information ontothe BBS. Subscribers were given “credit” for each megabyte of electronic data that theyuploaded onto the system, which entitled them to download defined amounts of data from thesystem in return. Information uploaded onto the BBS went directly to an “upload file” where anemployee of the BBS briefly checked the new files to ascertain whether they were “acceptable,”meaning not pornographic and not blatantly protected by copyright. 265 Many of the plaintiff’scopyrighted photographs appeared on the BBS and the plaintiff brought suit for infringement.With respect to the issue of direct liability for the infringing postings of its subscribers,the court agreed with the Netcom decision’s requirement of some direct volitional act orparticipation in the infringement. However, the court found that the facts of the case, unlikethose of Frena, MAPHIA, and Netcom, were sufficient to establish direct liability forinfringement of both the public display and distribution rights. The court based its conclusion on“two crucial facts: (1) Defendants’ policy of encouraging subscribers to upload files, includingadult photographs, onto the system, and (2) Defendants’ policy of using a screening procedure inwhich [its] employees viewed all files in the upload file and moved them into the generallyavailable files for subscribers. These two facts transform Defendants from passive providers of aspace in which infringing activities happened to occur to active participants in the process ofcopyright infringement.” 266Finally, in Playboy Enterprises, Inc. v. Webbworld, Inc., 267 the court held the defendantsdirectly liable for infringing public displays of copyrighted images for making such imagesavailable through a website for downloading by subscribers.2. Kelly v. Arriba SoftAn important case construing the scope of the public display right on the Internet is thatof Kelly v. Arriba Soft Corp. 268 In that case, the defendant Arriba was the operator of a “visualsearch engine” on the Internet that allowed users to search for and retrieve images. In responseto a search query, the search engine produced a list of reduced, “thumbnail” images. To provide263264265266267268Id. at 1245.982 F. Supp. 503 (N.D. Ohio 1997).Id. at 506.Id. at 513.45 U.S.P.Q.2d 1641 (N.D. Tex. 1997).336 F.3d 811 (9 th Cir. 2003).- 73 -