“spiders” to “crawl” through the Internet and make copies in RAM of materials on websites in
the course of creating an index of that material.
Should a volitional act be required on the part of a third party to be liable for a copy made
during transmission? If so, is a direct volitional act to cause the copy to be made required (as in
the case of the original poster or the ultimate recipient of the copy), or is it sufficient if there was
a volitional act in setting up the automatic process that ultimately causes the copy to be made (as
in the case of the BBS operator, the OSP or the search engine service)? In view of the fact that
copyright law has traditionally imposed a standard of strict liability for infringement,^61 one could
argue that a direct volitional act may not be required.^62
In addition to copies made automatically on the Internet, many infringing copies may be
made innocently. For example, one may innocently receive an e-mail message that infringes the
copyright rights of another and print that message out. Or one may innocently encounter (and
copy into the RAM of one’s computer or print out) infringing material in the course of browsing.
Several cases have addressed the issue of direct liability on the part of OSPs, BBS
operators, and others for infringement of the reproduction right by users of the service, and in
particular how much of a volitional act is required for direct infringement liability:^63
(a) The Netcom CaseThe well known case of Religious Technology Center v. Netcom On-Line
Communication Services^64 refused to impose direct infringement liability on an OSP for copies
made through its service, at least where the OSP had no knowledge of such infringements. In
that case the plaintiffs sought to hold liable the OSP (Netcom) and the operator of a BBS which
gained its Internet access through the OSP for postings of the plaintiffs’ copyrighted works on
the bulletin board. The works in question were posted by an individual named Erlich^65 to the
BBS’s computer for use through Usenet.^66 The BBS’s computer automatically briefly stored
them. The OSP then automatically copied the posted works onto its computer and onto other
(^61) Religious Technology Center v. Netcom On-Line Communications Servs., 907 F. Supp. 1361, 1367 & n.10
(N.D. Cal. 1995); R. Nimmer, Information Law ¶ 4.06, at 4-25 (2001). Intent can, however, affect statutory
damages to be awarded to the plaintiff. Netcom, 907 F. Supp. at 1367.
(^62) But cf. R. Nimmer, Information Law ¶ 4.06, at S4-50 (2001 Cum. Supp. No. 2) (“Although copyright is a strict
liability statute, there should be some [sort] of volition or causation which is lacking where a defendant’s
system is merely used to create a copy by a third party.”).
(^63) See also cases discussed in Section III.C.1 below pertaining to direct liability of online service providers.
(^64) 907 F. Supp. 1361 (N.D. Cal. 1995).
(^65) In an earlier order, the court had entered a preliminary injunction against Erlich himself.
(^66) The Usenet is “a worldwide community of electronic BBSs that is closely associated with the Internet and with
the Internet community. The messages in Usenet are organized into thousands of topical groups, or
‘Newsgroups’ .... As a Usenet user, you read and contribute (‘post’) to your local Usenet site. Each Usenet site
distributes its users’ postings to other Usenet sites based on various implicit and explicit configuration settings,
and in turn receives postings from other sites.” Daniel P. Dern, The Internet Guide for New Users 196-97
(1994).