photographs as soon as he was made aware of them.^88 “There is no dispute that Defendant
Frena supplied a product containing unauthorized copies of a copyrighted work. It does not
matter that Defendant Frena claims he did not make the copies [himself].”^89 Although the case
did not generate a finding of liability with respect to the right of reproduction, the court’s logic
with respect to finding infringement of the rights of distribution and display would seem to apply
to the reproduction right as well.
The reach of Frena may be limited, however, because the BBS was apparently one
devoted to photographs, much of it of adult subject matter, and subscribers routinely uploaded
and downloaded images therefrom. Thus, the court may have viewed Frena as a more direct
participant in the infringement, having set up a bulletin board that was devoted to the kind of
activity that would foreseeably lead to infringement. The undisputed evidence of the presence
on the bulletin board of the plaintiff’s photographs, some of which had been edited to remove the
plaintiff’s trademarks and to add Frena’s advertisements, was apparently evidence of sufficient
involvement for the court to find direct infringement of the public distribution right. Similarly,
Frena’s selection of the infringing content for inclusion in the bulletin board was apparently
sufficient involvement to find direct infringement of the public display right.^90
In addition, as discussed in detail below, the legislative history of the Digital Millennium
Copyright Act, which contains a number of safe harbors that address the issue of OSP liability,
states that it was intended to overrule the Frena case, at least to the extent Frena suggested that
passive, automatic acts engaged in through a technological process initiated by another through
the facilities of an OSP could constitute direct infringement on the part of the OSP.^91 In a case
decided in 2001, the Fourth Circuit held that the Digital Millennium Copyright Act had indeed
overruled Frena “insofar as that case suggests that [passive, automatic acts engaged in through a
technological process initiated by another] could constitute direct infringement.”^92
(e) The Webbworld CaseIn a case factually similar to Frena, a company operating a website was held directly
liable for the posting of copyrighted material on its site which could be downloaded by
subscribers. In Playboy Enterprises, Inc. v. Webbworld, Inc.,^93 the defendant Webbworld, Inc.
operated a website called Neptics, which made adult images available to subscribers who paid
$11.95 per month. Over a period of several months, images became available through the
Neptics website which were originally created by or for the plaintiff Playboy Enterprises, Inc.
(^88) Id. at 1554.
(^89) Id. at 1556.
(^90) K. Stuckey, Internet and Online Law § 6.10[2][a], at 6-80 (2013).
(^91) H.R. Rep. No. 105-551 Part 1, at 11 (1998).
(^92) ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619, 622 (4th Cir. 2001). A subsequent district court
cited with approval the Fourth Circuit’s decision on this point. See Costar Group Inc. v. Loopnet, Inc., 164 F.
Supp. 2d 688, 695-96 (D. Md. 2001), aff’d, 373 F.3d 544 (4th Cir. 2004).
(^93) 968 F. Supp. 1171 (N.D. Tex. 1997).