Copyright suit against Internet provider must go to trial

Copyright suit against Internet provider must go to trial

12/18/95

CALIFORNIA–A federal judge ruled in late November that an Internet bulletin board operator and access provider did not directly violate a copyright when it allowed a copyrighted Scientology document to be transmitted over its system, but that it may have engaged in contributory infringement.

Judge Ronald Whyte of San Jose, Calif. ruled that if Netcom On- Line Communications Services, Inc. was aware that the documents posted on its system were copyrighted material, then it would be held liable.

The suit against Netcom began in February when federal marshals, acting under a civil court order obtained by the Church of Scientology, entered the home of former Scientology clergyman Dennis Erlich, confiscating his computer disks and other materials containing allegedly copyrighted Scientology texts. The church then sued Erlich, Netcom and bulletin operator Tom Klemesrud, claiming that they violated Scientology copyrights by posting church documents on the Internet.

After Netcom petitioned the court to dismiss the case, the judge ruled that Netcom is not liable for direct copyright infringement or for vicarious liability.

An Internet service provider is not liable for direct infringement when an individual uses its system to post copyrighted material on the Internet without its knowledge, the court ruled. The court noted that holding an access provider liable for direct infringement under those circumstances “would result in liability for every single Usenet server in the worldwide link of computers transmitting [the infringing] message to every other computer.” Usenet is a feature of the Internet that distributes postings to other networks on the system.

The court ruled that unresolved issues of fact precluded a grant of summary judgment regarding contributory copyright infringement, which is applicable to services that allow users to violate copyright laws, including owners of photocopying machines. The court stated that the company may be able to show during the trial that it acted responsibly under the circumstances, thereby avoiding liability.

Erlich began posting church documents in August 1994 but Netcom did not receive notice of an infringement claim until late December 1994. The judge said there was “a genuine issue as to whether Netcom knew of any infringement by Erlich before it was too late to do anything about it.”

The court also denied the church’s request that a preliminary injunction be entered against the service providers. The court held that such a move would chill the speech of all users of the service, and that the church had failed to establish that it was likely to succeed on the merits and that it would suffer irreparable harm without the injunction. (Religious Technology Center v. Netcom On-Line Communications)