And in Playboy Enterprises, Inc. v. Hardenburgh,^537 the defendants operated a BBS
which made available graphic image files to subscribers for a fee, many of which contained adult
material. To increase its stockpile of available information, and thereby its attractiveness to new
customers, defendants provided an incentive to encourage subscribers to upload information onto
the BBS. Subscribers were given “credit” for each megabyte of electronic data that they
uploaded onto the system, which entitled them to download defined amounts of data from the
system in return. Information uploaded onto the BBS went directly to an “upload file” where an
employee of the BBS briefly checked the new files to ascertain whether they were “acceptable,”
meaning not pornographic and not blatantly protected by copyright.^538 Many of the plaintiff’s
copyrighted 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 or
participation in the infringement. However, the court found that the facts of the case, unlike
those of Frena, MAPHIA, and Netcom, were sufficient to establish direct liability for
infringement 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, including
adult photographs, onto the system, and (2) Defendants’ policy of using a screening procedure in
which [its] employees viewed all files in the upload file and moved them into the generally
available files for subscribers. These two facts transform Defendants from passive providers of a
space in which infringing activities happened to occur to active participants in the process of
copyright infringement.”^539
Finally, in Playboy Enterprises, Inc. v. Webbworld, Inc.,^540 the court held the defendants
directly liable for infringing public displays of copyrighted images for making such images
available through a website for downloading by subscribers.
- Kelly v. Arriba Soft
An important case construing the scope of the public display right on the Internet is that
of Kelly v. Arriba Soft Corp.^541 In that case, the defendant Arriba was the operator of a “visual
search engine” on the Internet that allowed users to search for and retrieve images. In response
to a search query, the search engine produced a list of reduced, “thumbnail” images. To provide
this functionality, Arriba developed a program called a “crawler” that would search the Web
looking for images to index, download full-sized copies of the images onto Arriba’s server, then
use those images to generate lower resolution thumbnails. Once the thumbnails were created, the
program deleted the full-sized originals from the server.^542
(^537) 982 F. Supp. 503 (N.D. Ohio 1997).
(^538) Id. at 506.
(^539) Id. at 513.
(^540 45) U.S.P.Q.2d 1641 (N.D. Tex. 1997).
(^541) 336 F.3d 811 (9th Cir. 2003).
(^542) Id. at 815.