Cite as 907 F.Supp. 1361 (N.D.Cal. 1995)
that the storage on a defendant’s system of infringing copies and retransmission to other servers is not a direct infringement by the BBS operator of the exclusive right to reproduce the work where such copies are uploaded by an infringing user. Playboy does not hold otherwise.[1]
e. Sega Case
A court in this district addressed the issue of whether a BBS operator is liable for copyright infringement where it solicited subscribers to upload files containing copyrighted materials to the BBS that were available for others to download. Sega Enterprises Ltd. v. MAPHIA, 857 F.Supp. 679, 683 (N.D.Cal.1994). The defendant’s “MAPHIA” BBS contained copies of plaintiff Sega’s video game programs that were uploaded by users. Id. at 683. The defendant solicited the uploading of such programs and received consideration for the right to download files. Id. Access was given for a fee or to those purchasing the defendant’s hardware device that allowed Sega video game cartridges to be copied. Id. at 683–84. The court granted a preliminary injunction against the defendant, finding that plaintiffs had shown a prima facie case of direct and contributory infringement. Id. at 687. The court found that copies were made by unknown users of the BBS when files were uploaded and downloaded. Id. Further, the court found that the defendant’s knowledge of the infringing activities, encouragement, direction and provision of the facilities through his operation of the BBS constituted contributory infringement, even though the defendant did not know exactly when files were uploaded or downloaded. Id. at 686–87.
This court is not convinced that Sega provides support for a finding of direct infringement where copies are made on a defendant’s BBS by users who upload files. Although there is some language in Sega regarding direct infringement, it is entirely conclusory:
Sega has established a prima facie case of direct copyright infringement under 17 U.S.C. § 501. Sega has established that unauthorized copies of its games are made when such games are uploaded to the MAPHIA bulletin board, here with the knowledge of Defendant Scherman. These games are thereby placed on the storage media of the electronic bulletin board by unknown users.
Id. at 686 (emphasis added). The court’s reference to the “knowledge of Defendant” indicates that the court was focusing on contributory infringement, as knowledge is not an element of direct infringement. Perhaps, Sega’s references to direct infringement and that “copies … are made” are to the direct liability of the “unknown users,” as there can be no contributory infringement by a defendant without direct infringement by another. See 3 Nimmer on Copyright § 12.04[A][3][a], at 12-89. Thus, the court finds that neither Playboy nor Sega requires finding Netcom liable for direct infringement of plaintiffs’ exclusive right to reproduce their works.[2]
f. Public Distribution and Display?
Plaintiffs allege that Netcom is directly liable for making copies of their works. See FAC ¶25. They also allege that Netcom violated their exclusive rights to publicly display copies of their works. FAC ¶¶44, 51. There are no allegations that Netcom violated plaintiffs’ exclusive right to publicly distribute their works. However, in their discussion of direct infringement, plaintiffs insist that Netcom is liable for “maintain[ing] copies of [Erlich’s] messages on its server for eleven days for access by its subscribers and ‘USENET neighbors’ ” and they compare this case to the Playboy case, which dis-
- ↑ The court further notes that Playboy has been much criticized. See, e.g., L. Rose, Netlaw 91–92 (1995). The finding of direct infringement was perhaps influenced by the fact that there was some evidence that defendants in fact knew of the infringing nature of the works, which were digitized photographs labeled “Playboy” and “Playmate.”
- ↑ To the extent that Sega holds that BBS operators are directly liable for copyright infringement when users upload infringing works to their systems, this court respectfully disagrees with the court’s holding for the reasons discussed above. Further, such a holding was dicta, as there was evidence that the defendant knew of the infringing uploads by users and, in fact, actively encouraged such activity, thus supporting the contributory infringement theory. Id. at 683.
