infringing on Sega’s copyright or encouraged them to do so, has no bearing on whether Sabella
directly caused the copying to occur.”^82
The court did rule, however, that Sabella was liable for contributory infringement. The
court cited the Ninth Circuit’s holding in Fonovisa, Inc. v. Cherry Auction, Inc. that “providing
the site and facilities for known infringing activity is sufficient to establish contributory
liability.”^83 The court noted that Sabella provided the BBS as a central depository site for the
unauthorized copies of games, and allowed subsequent distribution of the games by user
downloads. “She provided the facilities for copying the games by providing, monitoring, and
operating the BBS software, hardware, and phone lines necessary for the users to upload and
download games.”^84 Accordingly, she was liable for contributory infringement under the
Fonovisa standard.^85
The 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 and
facilities for the known infringing conduct. She provided a road map on the BBS for easy
identification of Sega games available for downloading.”^86 The court also rejected Sabella’s fair
use defense, issued a permanent injunction against Sabella, and awarded Sega statutory damages
of $5,000 per infringed work.
In contrast to the preceding cases, several cases have held that where a defendant BBS
operator 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,^87 decided before Netcom, MAPHIA and Sabella, goes
further than those cases and established liability for the acts of subscribers without a direct
volitional 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 curiously
not the right of reproduction) with respect to the plaintiff’s copyrighted photographs, which were
distributed and displayed through the bulletin board by subscribers, despite evidence that the
operator never himself uploaded any of the photographs onto the bulletin board and removed the
(^82) Id. at 29,848.
(^83) 76 F.3d 259, 264 (9th Cir. 1996).
(^84) Sabella, 1997 Copyr. Law. Dec. ¶ 27,648 at 29,849.
(^85) Another recent case applied the Fonovisa standard to hold the defendant Cyrix Corporation liable for
contributory infringement for posting on its website some copyrighted applet software of the plaintiff from
which it could be downloaded for use with the defendant’s sound boards. “Cyrix is probably also contributorily
liable because it encouraged and provided the resources for known infringing activity, i.e. the copying by others
of the applet software that Cyrix made available on its website.” Creative Labs, Inc. v. Cyrix Corp., 42
U.S.P.Q.2d 1872, 1875-76 (N.D. Cal. 1997).
(^86) Sabella, 1997 Copyr. Law. Dec. ¶ 27,648 at 29,849.
(^87) 839 F. Supp. 1552 (M.D. Fla. 1993).