C. Liability of Online Service Providers
Much of the Internet copyright debate in recent years has centered around the issue of
copyright liability of OSPs, BBS operators, system operators, and other service providers for
infringing activities taking place through their facilities. Indeed, to date, almost all of the
reported Internet copyright decisions have centered around the issue of liability of OSPs and
BBS operators. Copyright owners have sought to hold OSPs and BBS operators liable on
theories of direct liability, contributory liability, and vicarious liability. This Section discusses
each of these three theories in turn and the cases raising those theories that have been decided to
date involving the Internet. This Section also discusses the relevant provisions of the DMCA
that limit the liability of OSPs for the infringing acts of third parties committed through their
online services.
- Direct Liability
As discussed in detail in Section II.A.4 above, a majority of the cases decided to date
require that there be some kind of a direct volitional act in order to establish direct infringement
liability on the part of an OSP or BBS for infringing postings and unauthorized uses by users.
For example, the Netcom court refused to hold an OSP directly liable for automatic pass through
of allegedly infringing messages posted to Usenet by a subscriber.^1580 The subsequent MAPHIA
case^1581 and the Sabella case^1582 extended the logic of Netcom, refusing to hold liable as a direct
infringer the operator of a BBS for the uploading and downloading by subscribers of
unauthorized copies of Sega’s videogames through the BBS, even though the operator
encouraged the initial uploading, because the operator had not participated in the very acts of
uploading or downloading themselves. And the CoStar,^1583 Ellison,^1584 and Perfect 10 v.
Cybernet Ventures^1585 cases suggest that an OSP will not have direct liability for infringing
material posted on its service by users or available through its service on third party sites where
the OSP has not encouraged such posting or had advance knowledge of it.
The logic of the Ninth Circuit’s decision in Subafilms, Ltd. v. MGM-Pathe
Communications Co.^1586 also suggests there should not be direct liability for persons who merely
place material on a network for subsequent unauthorized copying, display, performance or the
like. Subafilms held that no independent “right of authorization” was created by the copyright
statute’s reference in Section 106 of the exclusive right “to do or to authorize” the acts
enumerated therein. Rather, the reference to “authorize” was meant only to establish potential
(^1580) Religious Technology Center v. Netcom On-Line Communications Servs., 907 F. Supp. 1361 (N.D. Cal. 1995).
(^1581) Sega Enterprises Ltd. v. MAPHIA, 948 F. Supp. 923 (N.D. Cal. 1996).
(^1582) Sega Enterprises Ltd. v. Sabella, 1997 Copyr. Law. Dec. ¶ 27,648 (N.D. Cal. Dec. 18, 1996).
(^1583) CoStar v. Loopnet, 164 F. Supp. 2d 688 (D. Md. 2001), aff’d, 373 F.3d 544 (4th Cir. 2004).
(^1584) Ellison v. Robertson, 189 F. Supp. 2d 1051 (C.D. Cal. 2002), aff’d in part and rev’d in part, 357 F.3d 1072 (9th
Cir. 2004).
(^1585) Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D. Cal. 2002).
(^1586) 24 F.3d 1088 (9th Cir. 1994).