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2002]

AGAINST “AGAINST CYBERANARCHY”

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It was true, of course, that Netcom did not know that it was making copies of the copyrighted works,63 that the “copies” it made were merely transient arrangements of bits on its disk drives,64 that it had not taken any “affirmative action . . . other than by installing and maintaining a system whereby software automatically forwards messages received from sub- scribers onto the Usenet, and temporarily stores copies on its system” to carry out its copying activities,65 and that it was only doing exactly what thousands of other Usenet servers around the globe were doing with the documents that Erlich had posted. 66

All true, and all, under the settled law of 1995, irrelevant. The Copy- right Act is a “strict liability statute”;67 because infringement “does not require intent or any particular state of mind,”68 whether Netcom knew of the infringing nature of the messages it was transmitting was of no conse- quence. Given a Ninth Circuit decision squarely on point,69 there was also n o q u e s t i o n , 7 0 t h a t ( 1 ) t h e t r a n s i e n t c o l l e c t i o n s o f b i t s o n N e t c o m s d i s k drives constituted “copies” within the meaning of the Copyright Act;71 (2)

while the infringing messages remained on Netcom’s system “for at most eleven days,” they were nonetheless “sufficiently ‘fixed’ to constitute rec- ognizable copies under the Copyright Act”;72 (3) although one could argue that “there should still be some element of volition or causation”73 in a copyright claim, there was no such element; and (4) the defense of “lots of other people are doing what I’m doing, so you should not hold me liable,” was not established in copyright law.

On the other hand, imposing liability on Netcom for these activities somehow “does not make sense,”74 in Judge Whyte’s words. The individ- ual acts on the basis of which Netcom was charged with infringement were “functionally identical” to any number of things we had seen before.

63. Religious Tech. Ctr., 907 F. Supp. at 1374 (noting “no question of fact as to whether Netcom knew or should have known of Erlich’s infringing activities” prior to receipt of notification from plaintiffs).

  • 64.

    Id. at 1368.

  • 65.

    Id.

  • 66.

    Id. at 1373.

  • 67.

    Id. at 1370. See also id. at 1367 (“[K]nowledge is not an element of direct in-

fringement.”).

68.

Id. at 1367.

69.

MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993).

70.

Religious Tech. Ctr., 907 F. Supp. at 1368.

71.

Id.

72.

Id.

73.

Id. at 1370 (emphasis added).

74

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