BBS liability

        --Trotter Hardy

• Forwarded Message Follows -------

Date:          Thu, 13 Jan 1994 11:28:00 -0500
Reply-to:      cyberia-l[_at_]birds.wm.edu
To:            thardy[_at_]mail.wm.edu
Subject:       BBS liability

For those who haven't seen this yet, a federal district court in Florida has held that a BBS operator is liable for infringing Playboy's copyright distribution and display rights by making available Playboy pictures in machine readable format. The interesting part is that the operator alleged that a subscriber had uploaded the files without the operator's knowledge, and the the files had been removed as soon as the operator was aware of their presence. See Playboy Enterprises, Inc. v. Frena, No. 93- 489-Civ-J-20 (D.C. M. Fla. 12/9/93).

This strikes me as a bit odd -- patent rights are exclusive regardless of. scienter or knowledge, but I was under the impression that copyright usually requires a knowing violation. I guess that there is the George Harrison case where he apparently subconciously copied "He's So Fine" in composing "My Sweet Lord" -- but this wasn't even subconcious, this was (at least allegedly) oblivious.

Policy wise, the result seems pretty burdensome for BBS operators -- either completely ban uploading, or only allow uploading to a file that cannot be downloaded until reviewed and approved by the operator. Lots of monitoring. Lots of liability -- might be cheaper just to shut down.

Dan
dburk[_at_]gmuvax.gmu.edu

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