Advanced Copyright Issues on the Internet - Fenwick & West LLP

(2) Cases Holding That Mere Posting Is Not a DistributionIn Religious Technology Center v. Netcom On-Line Communication Services, 398 thecourt refused to hold either an OSP or a BBS operator liable for violation of the publicdistribution right based on the posting by an individual of infringing materials on the BBS. Withrespect to the BBS, the court stated: “Only the subscriber should be liable for causing thedistribution of plaintiffs’ work, as the contributing actions of the BBS provider are automatic andindiscriminate.” 399 With respect to the OSP, the court noted: “It would be especiallyinappropriate to hold liable a service that acts more like a conduit, in other words, one that doesnot itself keep an archive of files for more than a short duration.” 400In In re Napster, Inc. <strong>Copyright</strong> Litigation, 401 the district court rejected the plaintiffs’argument that Napster’s indexing of MP3 files that its users posted on the Napster network madeNapster a direct infringer of the plaintiffs’ exclusive distribution rights. The plaintiffs relied onHotaling v. Church of Jesus Christ of Latter-Day Saints, 402 which held a library engages in thedistribution of a copyrighted work when it adds the work to its collections, lists the work in itsindex or catalog and makes the work available for borrowing or browsing. The Napster courtdistinguished the Hotaling case, arguing that the library had itself made actual, unauthorizedcopies of copyrighted materials made available to its borrowers. By contrast, Napster did notitself have a “collection” of recordings on its servers, but rather merely an index of recordings. 403“This might constitute evidence that the listed works were available to Napster users, but it iscertainly not conclusive proof that the songs identified in the index were actually uploaded ontothe network in a manner that would be equivalent to the way in which the genealogical materialsat issue in Hotaling were copied and distributed to the church’s branch libraries.” 404The court further noted that the definition of “publication” in the copyright statute, whichthe Supreme Court observed in a 1985 case that the legislative history equated with the right ofdistribution, 405 requires the distribution of copies or phonorecords of a work to the public or theoffering to distribute copies of that work for purposes of further distribution, public performance,or public display. The court held that merely by indexing works available through its system,Napster was not offering to itself distribute copies of the works for further distribution by itsusers. 406398399400401402403404405406907 F. Supp. 1361, 1372 (N.D. Cal. 1995).Id. at 1372.Id.377 F. Supp. 2d 796 (N.D. Cal. 2005).118 F.3d 199 (4 th Cir. 1997).In re Napster, Inc. <strong>Copyright</strong> Litigation, 377 F. Supp. 2d at 802-03.Id. at 803.Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985).In re Napster, Inc. <strong>Copyright</strong> Litigation, 377 F. Supp. 2d at 803-05.- 97 -