System administrators to be help responsible for content [cr-95/11/07]


Introduction from moderator:

You may remember the Clinton administration's White Paper on
copyright, which I have mentioned on this list and which has
engendered a lot of controversy because it promotes the interests of
copyright holders over users.  A twist that I haven't seen before is
discussed in the Computer Law Report #13, published in electronic form
by William S. Galkin.  (To subscribe, send email to •••@••.•••.)

Aside from the rights of users, it would be very destructive to make
system administrators responsible for monitoring their systems and
networks for copyright infringement.  The result would be exactly like
making them monitor systems for indecent material--it would shut down
the Internet and replace it with tightly-controlled services.

The following report has also been stored in our ftp site, in the
Essays directory, file Clinton-White-Paper.




[This is the third of a series of articles discussing recommendations made in
the report issued September 5, 1995 by President Clinton's Information
Infrastructure Task Force. The report is entitled "Intellectual Property and
the National Information Infrastructure (NII)," and is commonly referred to
as the White Paper.]

The White Paper makes various recommendations for legislative changes which
it hopes will grease the onramps to the Information Highway. Besides these
overt recommendations, the White Paper also expends considerable effort to
analyze the current state of the law.

This analysis of the current state of the law, though presented as objective,
often represents the Administration's desired interpretation of legal issues
that are as yet unsettled in the courts. In presenting this analysis, the
Administration hopes that its interpretations will be adopted by the courts,
and affect the outcomes of some cases currently pending.

One area where the White Paper's analysis rises to the level of
"recommendation" relates to whether a sysop or online provider should be held
liable for unknowingly facilitating the distribution of materials that
infringe someone's copyright. This infringment occurs when users of the
system upload and download material without permission from the copyright

Where such infringement is occurring, the online operator, theoretically,
could be found liable for direct infringement, vicarious infringement, or
contributory infringement. Or, the online operator could also be found not
liable at all.

Direct infringement is where the defendant directly causes the infringement
to occur. The court in Playboy Enterprises Inc. v. Frena found the BBS
operator to be directly liable for the display and distribution of Playboy
photographs, which were uploaded and downloaded by subscribers, without the
knowledge of the operator. If direct infringement is found, then there is
strict liability. That means that there will be liability even where the
"infringer-operator" had no knowledge that the infringement was occurring.

Vicarious infringement would occur where  someone has the "right and ability"
to supervise the infringing action of another, even though the supervisor has
no knowledge of the infringement. Accordingly, an operator could be found to
be vicariously liable if a court determines that it has the right and ability
to supervise the activities of the users.

Contributory infringement may be found when one who, with knowledge of the
infringing activity, contributes to the infringing conduct of another.  An
online operator could be found to be a contributory infringer based on the
provision of online services and equipment facilitating the direct
infringement of the users.

Although the Playboy case found the operator to be directly liable for the
infringement, the type of liability, or whether there would even be
liability, is currently an unsettled and unclear issue. However, the White
Paper gives the impression that this issue is settled and that operators will
be directly infringing when subscribers upload and download copyrighted
material without their knowledge. The White Paper states affirmatively that
"[a]ltering the standards of liability for infringement [for online
operators] would be a significant departure from current copyright principles
and law and would result in a substantial derogation of the right of
copyright owners."

Taking the position that operators will be held to be direct infringers, the
White Paper dismisses the following arguments in favor holding operators to a
different standard than others:   (1) the volume of material on a service
provider's system is too large to monitor or screen; (2) even if a service
provider is willing and able to monitor the material on its system, it cannot
always identify infringing material; (3) failure to shield online service
providers will impair communication and availability of information; (4)
exposure to liability for infringement will drive service providers out of
business, causing the NII to fail; and (5) the law should impose liability
only on those who assume responsibility for the activities their subscribers
engage in on their system, and not on operators who allow the system to
operate without content supervision.

The position that the White Paper promotes, that operators should be strictly
liable as direct infringers for the uploading and downloading of copyrighted
material, as mentioned, is currently unsettled. By assuming this position,
the Administration has been viewed as seeking to influence the following
currently pending cases to adopt this position.  In one (Sega Enterprises
Ltd. v. MAPHIA), the court issued a preliminary injunction against a BBS for
allowing and facilitating the unauthorized uploading of Sega's copyrighted
video games. In a second case (Frank Music Corp. v. CompuServe), CompuServe
is being sued for allegedly allowing the unauthorized uploading and
downloading of musical recordings. In third case (Religious Technology Center
v. NETCOM), the Church of Scientology is suing a BBS operator and an Internet
access provide for allowing the unauthorized uploading of copyrighted

In situations where an operator is truly innocent regarding infringement
resulting from the uploading and downloading of copyrighted material, law
makers have to determine who should bear the responsibility for and loss of
this infringement: the copyright holders, the online operators or the users
committing the infringement.  The position that the White Paper promotes
sides with the copyright holder in the sense that it places the burden on
those other than the copyright holder to expend time and effort to protect
the copyright holder's interests.

-- END --

 Posted by Andrew Oram  - •••@••.••• - Moderator: CYBER-RIGHTS (CPSR)
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