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[Vol. 17:1

After all, whether you are operating a photocopying machine, a CD- burner, or a Usenet server, you are making a copy of a document, hardly an unfamiliar activity. But the system within which those acts were em- bedded had changed, and application of the settled law to the aggregate of those individual actions somehow needed to change along with it.

The file storage and reproduction activities in which Netcom was en- gaged were “necessary to having a working system for transmitting Usenet postings to and from the Internet.”75 If Netcom were deemed liable for c o p y r i g h t i n f r i n g e m e n t , a n y s t o r a g e o f a c o p y t h a t o c c u r s i n t h e p r o c e s s of sending a message to the Usenet [would be] an infringement,”76 and

“every single Usenet server in the worldwide link of computers transmit- ting Erlich’s message to every other computer”77 would be liable. Carried to its “natural extreme”78—scaled up, we might say—application of settled law in this case “would lead to unreasonable liability.”79 It “does not make sense,” Judge Whyte wrote, “to adopt a rule that could lead to the liability of countless parties whose role in the infringement is nothing more than setting up and operating a system that is necessary for the func- tioning of the Internet.”80 A theory of infringement that holds every Inter- net server worldwide liable for activities that each of them was undertak- ing thousands of times a second was not “workable.81 Because there was no “meaningful distinction . . . between what Netcom did and what every other Usenet server does,”82 Judge Whyte found that Netcom “cannot be held liable for direct infringement.” 83

Settled law, in other words, did not scale. So Judge Whyte unsettled it.

  • 75.

    Id. at 1368.

  • 76.

    Id. at 1370 (emphasis added).

  • 77.

    Id. at 1369.

  • 78.


  • 79.

    Id. (emphasis added).

  • 80.

    Id. at 1372.

  • 81.

    Id. at 1372 (emphasis added).

  • 82.

    Id. at 1373.

  • 83.

    Id. A different judge—a less creative, or a less courageous judge, perhaps—

would have taken the time-honored route of obfuscation, twisting the “fuzzball factors” of the fair use doctrine to fit the facts at hand. See Frank E. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207, 208 (1996); see also Religious Tech. Ctr., 907 F. Supp. at 1378-81 (holding that Netcom’s copying was not a “fair use” as a matter of law).

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