Advanced Copyright Law on the Internet

infringing activity and made their home Internet connections available to increase the number of
uploaded files.^1604

2. Contributory Liability

A party may be liable for contributory infringement where “with knowledge of the
infringing activity, [it] induces, causes or materially contributes to the infringing activity of
another.”^1605 The standard of knowledge is objective: to know or have reason to know that the
subject matter is copyrighted and that the particular uses were violating copyright law.^1606 For
liability for contributory infringement, there must be a direct infringement^1607 to which the
contributory infringer has knowledge and encourages or facilitates.

The requirement of knowledge may eliminate contributory liability on the part of an OSP
or BBS operator with respect to many instances of infringement for which the OSP or BBS is
merely a passive information conduit and has no knowledge of the infringement. However,
given knowledge (or reason to know), a number of cases suggest that a system provider cannot
simply continue to provide the facility that enables infringement.

(a) The Netcom Case

In Religious Technology Center v. Netcom On-Line Communication Services,^1608 the
court held that the OSP Netcom could be contributorily liable for infringing postings by an
individual named Erlich of copyrighted religious materials to Usenet through the provider after
the service was given notice of the infringing material. “If plaintiffs can prove the knowledge
element, Netcom will be liable for contributory infringement since its failure to simply cancel
Erlich’s infringing message and thereby stop an infringing copy from being distributed
worldwide constitutes substantial participation in Erlich’s public distribution of the message.”^1609
The court held that the copyright notices in the posted works were sufficient to give Netcom
notice that the works were copyrighted.^1610

However, the court was careful to note that where an operator is unable to verify a claim
of infringement, there may be no contributory liability:

(^1604) Id. at *65-67.
(^1605) E.g., Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971);
Cable/Home Communications Corp. v. Network Prods., Inc., 902 F.2d 829, 845 (11th Cir. 1990).
(^1606) R. Nimmer, Information Law ¶ 4.11, at 4-40 (2001); see also Sega Enterprises Ltd. v. MAPHIA, 948 F. Supp.
923, 933 (N.D. Cal. 1996) (“The standard for the knowledge requirement is objective, and is satisfied where the
defendant knows or has reason to know of the infringing activity.”) (citing Casella v. Morris, 820 F.2d 362, 365
(11th Cir. 1987)).
(^1607) Given the ubiquitous nature of copies on the Internet and the strength of the copyright holder’s other rights
discussed in this paper, establishing a direct infringement in a network transmission should not be difficult.
(^1608) 907 F. Supp. 1361 (N.D. Cal. 1995).
(^1609) Id. at 1374.
(^1610) Id.