Federal Communications Law Journal Volume 49 Issue 2 Article 8 2-1997 Contributory Liability for Access Providers: Solving the Conundrum Digitalization Has Placed on Copyright Laws Wendy M. Melone Indiana University School of Law Follow this and additional works at: https://www.repository.law.indiana.edu/fclj Part of the Communications Law Commons, Intellectual Property Law Commons, and the Internet Law Commons Recommended Citation Melone, Wendy M. (1997) "Contributory Liability for Access Providers: Solving the Conundrum Digitalization Has Placed on Copyright Laws," Federal Communications Law Journal: Vol. 49 : Iss. 2 , Article 8. Available at: https://www.repository.law.indiana.edu/fclj/vol49/iss2/8 This Note is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Federal Communications Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. NOTE Contributory Liability for Access Providers: Solving the Conundrum Digitalization Has Placed on Copyright Laws Wendy M. Melone* INTRODUCTION .................................. 491 I. THE PLAYBOy AND SEGA APPROACHES ................. 495 11. THE INAPPROPRIATENESS OF APPLYING STRAIGHT VICARIOUS LIABILITY .................... 499 HII. SETTING THE RECORD STRAIGHT: RELIGIOUS TECHNOLOGY CENTER V. NETCOM AND CONFLICTING LEGISLATION WITHIN THE Nil COPYRIGHT ACT OF 1995 501 A. ContributoryLiability Is the Best Standardfor Access Providers ................ 501 B. The NIT CopyrightAct of 1995 Imposes Impossible Burdens Upon Access Providers ....... 504 CONCLUSION .................................... 506 INTRODUCTION With the explosion of bulletin board services (BBS)l on the Internet,2 * B.A. University of Florida, 1994; candidate for Doctor of Jurisprudence, Indiana University School of Law-Bloomington, 1997. I. Currently at least 60,000 BBS operate in cyberspace with estimates as high as 100,000. Michael Bauwens, What is Cyberspace?CoMPutrrxsIN LE3RARiES, Apr. 1, 1994, at 42; THE REPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS (Sept. 1995) [hereinafter THE WHrE PAPER]. When bulletin board users"chat" on the Internet, the material displayed or transmitted is often material protected under copyright laws. Richard Raysman & Peter Brown, Internet CopyrightDevelopments, N.Y.L.J., Jan. 6, 1996, at 3. FEDERAL COMMUNICATIONS LAW JOURNAL [Vol. 49 liability concerns have pitted copyright holders3 against bulletin board subscribers, 4 BBS operators (BBS), and access providers in an all out tug- of-war. Copyright proponents currently advocate a strict liability standard for copyright infringement. Such a standard would hold an Internet access provider liable even if it is unaware that infringing material has been placed on the Internet by a bulletin board subscriber. President Clinton recognized the difficulty of applying current copyright laws to the relatively new Internet arena and consequently formed the Information Infrastructure Task Force (IITF) in February 1993. The President also established the Working Group on Intellectual Property Rights (the Working Group). The Working Group, as part of the Information Policy Committee of the IITF, initially addressed intellectual property issues in its directive, A PreliminaryDraft of the Report of the Working Group on Intellectual Property Rights (the Green Paper)S and subsequently in The Report of the Working Group on Intellectual Property Rights (the White Paper),6 which finished two and one-half years of study and analysis of all significant issues involving 2. The 10 to 40 million Internet users convey millions of messages on any given day. The number of Internet users is increasing by 15% every month. THE WHrIT PAPER, supra note 1, at 116; Peter H. Lewis, Strangers,Not Their Computers,Build a Network in Time of Grief,N.Y. TIMES, Mar. 8, 1996, at Al; NII Copyright ProtectionAct of 1995 (Part2): Hearings on H. 2441 Before the Subcomm on Courts and IntellectualProperty of the House Comm on the Judiciary,104th Cong. 87 (1996) [hereinafter Nil CopyrightProtection Act Hearings, Part2] (prepared statement of Garry L. MeDaniels, President, Skills Bank Corporation, on behalf of the Software Publishers Ass'n). 3. See THE WHITE PAPER at 121 n. 390 (citing Frank Music v. CompuServe Inc., 93 Civ. 8153 (S.D.N.Y., Dec. 19, 1995), a case which recently settled). FrankMusicconcerned the liability of CompuServe for accomodating the copyright infringement of musical works. 4. Bulletin board subscribers receive access to the Internet via their BBS operators (or on-line providers). The BBS operators gain their access to the Internet through access providers who have direct access to the Internet. As such, the access provider serves as a conduit between the BBS operator and the Internet but has no direct relation to the bulletin board subscriber. 5. Patent CommissionerBruce A. Lehman chairsthe Working Group subcommitteefor the IITF. Twenty-seven governmental agencies participate on the IITF. Critics of both the Green Paper and the White Paper argue that the Working Group promotes broadening the exclusive rights of copyright holders without granting a similar increase in public access. Barbara Hoffian, Digital Innovation Now Challenge Legal System: US. and Foreign GovernmentsStudy the Impact of DigitalTechnology on ExistinglP Laws, NAT'L L.J., Oct. 23, 1995, at C15. 6. THE WHrrE PAPER, supra note 1, at 116. The currently proposed legislation following the White Paper has been scrutinized by a wide number of groups. See Pamela Samuelson, The CopyrightGrab,WIRED 4.01, Jan. 1996, at 134, which specifically addresses the problems of making on-line providers copyright police. Interest groups that have criticized the current legislation as a "maximalist" approach" include the Digital Future Coalition, an umbrella organization to the Alliance for Public Technologies and the Electronic Frontier Foundation. Gary Chapman, Copyright Bill Would Infringe on the Internet'sReal Promise, L.A. TIMES, May 20, 1996, at D7. Number 2] CONTRIBUTORY LIABILITY FOR ACCESS PROVIDERS 493 intellectual property.7 These proposals only begin to scratch the surface of the ongoing disputes regarding copyright infringement,8 leaving many unanswered questions about the proper assessment of the copyright-Internet conundrum resulting from digitalization.9 The Working Group prompted the National Information Infrastructure (NII) Copyright Protection Act of 1995, which addresses the ramifications of digitalization on copyright law and is currently under committee review in both the House of Representa- tives and the Senate."0 The relevant Internet changes involve defining and incorporating "transmissions" into current copyright laws to address the dissemination of information via computer access." Copyright holders argue that the strict liability standard set forth in copyright law 2 should continue to govern whether an access provider should be held accountable for a bulletin board subscriber's copyright infringement. Another argument recognizes vicarious liability13 as the means to protect the copyrighted work while still encouraging Internet growth. Two district courts recently addressed the issue of copyright infringement by bulletin board subscribers and legal ramifications for the on-line provider. 4 The primary focus of this Note is to discuss whether a large Internet 7. NilCopyrightProtectionActHearings, Part 2, supranote 2, at 2 (opening statement of Rep. Carlos J. Moorhead, Subcomm. Chairman). 8. Infringement is a technical concept describing interference with the statutorily definedrights ofa copyright holder. United States v. LaMacchia, 871 F. Supp. 535,545 n.19 (D. Mass. 1994). LaMacchiaillustratesthe current loophole in protecting criminal copyright violations. See NII Copyright ProtectionAct of 1995: JointHearing on HR. 2441 and S. 1284 Before the Subcomm. on Courtsand IntellectualPropertyof the House Comm. on the Judiciary and the Senate Comm. on the Judiciary, 104th Cong. 39-42 [hereinafter NII CopyrightProtectionActHearings,Part 1] (statement of Marybeth Peters, Register of Copy- rights and Associate Librarian for Copyright Services). 9. Digitalization allows us to (1) store data, (2) manipulate data, and (3) transmit data in ways qualitatively and quantitatively unthought of previously. While digitalization has no boundaries, copyright law is territorial. Marshall Leaffer, Speech on the Digital Revolution and Copyright atthe IndianaUniversity School of Law (Jan. 25, 1996) [hereinafter Leaffer]. 10. H.R. 2441, 104th Cong. (1995); S. 1284, 104th Cong. (1995). The bills are sponsored by RepresentativeMoorhead and Senators Hatch and Leahy, respectively. Seealso Criminal Copyright Improvement Act of 1995, S. 1122, 104th Cong. (1995). 11. NII Copyright ProtectionAct Hearings,Part 1, supra note 8, at 40 (statement of Marybeth Peters). 12. 17 U.S.C. § 501(a) (1994) provides in part: "Anyone who violates any of the exclusive rights of the copyright owner... or of the author... or who imports copies or phonorecords into the United States... is an infringer." 13. See Kelly Tickle, Comment, The Vicarious Liability of ElectronicBulletin Board OperatorsFor the Copyright Occurringon Their Bulletin Boards, 80 IowA L. REv. 391 (1995); THE Wr= PAPER, supra note 1, at 109. 14. Playboy Enterprises v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993); SegaEnterprises v. Maphia, 857 F. Supp. 679 (N.D. Cal. 1994). FEDERAL COMMUNICATIONS LAW JOURNAL