Advanced Copyright Law on the Internet

Where a BBS operator cannot reasonably verify a claim of infringement, either

because of a possible fair use defense, the lack of copyright notices on the copies,

or the copyright holder’s failure to provide the necessary documentation to show

that there is a likely infringement, the operator’s lack of knowledge will be found

reasonable and there will be no liability for contributory infringement for

allowing the continued distribution of the works on its system.^1611

Nevertheless, the court clearly imposed a duty on the operator to actively attempt to
verify a claim of infringement and to take appropriate action in response:

Thus, it is fair, assuming Netcom is able to take simple measures to prevent

further damage to plaintiffs’ copyrighted works, to hold Netcom liable for

contributory infringement where Netcom has knowledge of Erlich’s infringing

postings yet continues to aid in the accomplishment of Erlich’s purpose of

publicly distributing the postings.^1612

(b) The MAPHIA Case

In addition to the Netcom case, the court in the subsequent MAPHIA case^1613 (also out of
the Northern District of California) held a BBS and its system operator liable for contributory
infringement for both the uploading and the subsequent downloading of copies of Sega’s video
games by users where the system operator had knowledge that the infringing activity was going
on through the bulletin board, and had specifically solicited the uploading of the games for
downloading by users of the bulletin board. The court cited the Ninth Circuit’s decision in
Fonovisa, Inc. v. Cherry Auction, Inc.^1614 for the proposition that providing the site and facilities
for known infringing activity is sufficient to establish contributory liability. “In this case,
Sherman provided the BBS as a central depository site for the unauthorized copies of games, and
allowed subsequent distribution of the games by user downloads. He 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.”^1615 This suggests that mere
operation of a BBS, at least if the operator knows that infringing activity is taking place, may be
sufficient for contributory liability.

However, the court went on to hold that Sherman would have been liable as a
contributory infringer even under a higher standard requiring more direct participation in the
infringement that the court believed the Netcom decision established:

However, even under an alternative and higher standard of “substantial

participation,” Sherman is liable. Under this standard, Sherman is only liable if

(^1611) Id.
(^1612) Id. at 1375.
(^1613) Sega Enterprises Ltd. v. MAPHIA, 948 F. Supp. 923 (N.D. Cal. 1996).
(^1614) 76 F.3d 259 (9th Cir. 1996).
(^1615) MAPHIA, 948 F. Supp. at 933.