Re: BBS liability

> On Fri, 14 Jan 1994, Trotter Hardy wrote:
> > An interesting dialog on CYBERIA-L has started with the
> > following message from Dan Burk. It's a copyright matter, and I
> > thought therefore of interest to those on this list.
> > ------- 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
>
> The scienter distinction of patent/copyright refers to the knowledge of
> the protected object at the time of independent creation of the accused
> object, not the knowledge of infringing acts. If the BBS operator created
> the Playboy files from scratch without access to Playboy's images, then
> no infringement (not a likely scenario). This is known as independent
> creation. By contrast, an independent invention can nonetheless infringe
> a patent.

I do not believe that indepedant creation has much to do with sceinter. Sure it is a defense with copyright infringement, and not patent infringement. But that is because the offence in copyright infringement is (usually) copying. Almost by definition, if you have independant creation, you cannot have copying.

But there is definately a sceinter requirement for criminal copyright infringement that is missing for civil infringement. The scienter is essentially knowing that you are copying PROTECTED subject matter, and not necessarily that you are copying something. Thus, in most judicial districts (this varies from U.S. atty to U.S. atty - but see the discussion in particular the Senate for PL 102-561) one must know that he is copying protected subject matter. This means that there is such a thing as innocent copyright infringement. This happens when you copy protected subject matter, but believe it to be not protected (or perhaps that you didn't copy enough, etc.). Note the difference in statutory damages in 17 USC 504(c) between innocent, normal, and willful infringement. Also, note that the sole purpose of notice today is to defeat a defense of] innocent infringement. 17 USC 401(d).

Bruce E. Hayden                 1720 South Bellaire Street
bhayden[_at_]csn.org                   1100 Colorado Tower Bldg.
(303) 758-8400                      Denver, Colorado 80222