FALL 2010
Course No.: 9200-710 (& 810)-001
Course ID:  85723 & 85725
Time: M, W 4:45-6:15 p.m.
Room TBD
Professor Jay Dratler, Jr.
Across from Room 231D (IP Alcove)
Home: 330-835-4537
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008, 2010  Jay Dratler, Jr.  
For permission, see CMI.

Notes and Questions on Netcom

1.  Netcom involved three defendants: (1) the apostate Ehrlich, (2) the bulletin-board operator Klemesrud, and (3) the ISP (internet service provider) Netcom.  Be sure you understand each defendant's precise factual role in promulgating the alleged infringements.  Was the allegedly infringing material "fixed" while residing on Klemesrud's and Netcom's respective computer systems, so that it constituted "copies" for copyright purposes?

2.  Secondary liability requires primary liability, for there can be no contributory or vicarious infringement without direct infringement.  Who were the alleged direct infringers in Netcom?  Who were allegedly contributory or vicarious infringers?  Precisely on what facts was each claim of direct and secondary liability based?

3.  Consider first the defense of fair use.  Could Netcom have a valid defense of fair use even if Ehrlich does not?  Analyze the four factors outlined in Section 107 for Netcom.  Should its acts with respect to the infringing material posted by Ehrlich be considered fair?   Do you agree with the court's analysis? Would the same analysis necessarily apply to Ehrlich?

4.  Now consider Netcom's liability for direct infringement in the absence of a fair use defense.  What rights of the copyright holder under Section 106 was Netcom alleged to have directly infringed?  Was the court right to find no direct infringement on the facts of this case?

As the court notes, copyright infringement is a strict liability offense.  Infringement liability does not depend upon the defendant's knowledge or state of mind, although the remedy for infringement may.  A classic case is De Acosta v. Brown, 146 F.2d 408, 410-412 (2d Cir. 1944), in which the court held an "innocent" magazine publisher liable for publishing infringing material prepared by an independent, free-lance author, despite the author's assurances of and reputation for independent work.

Was the Netcom court right to conclude that direct infringement nevertheless requires an element of volition or participation?  Can you distinguish this case from Frena?  from MAPHIA?  Can you distinguish these cases with regard to Klemesrud's liability for direct infringement?

Were there any good policy reasons for the Netcom court's refusal to impose direct liability on Netcom and Klemesrud?  Which was the better ground for the court's decision in this regard, doctrine or policy?  What difference does refusing to impose direct liability make if the court goes on to impose secondary liability?

5.  Next consider Netcom's liability for contributory infringement.  Black letter law, including the Fonovisa decision, says that contributory liability requires two elements: (1) knowledge (actual or constructive); and (2) contribution.  Let's take contribution first.  Did Netcom and Klemesrud contribute to Ehrlich's infringement sufficiently to justify imposing liability on them?  Certainly some of Ehrlich's infringing acts could not have occurred but for Netcom's and Klemesrud's assistance.  Should "but for" causation satisfy the "contribution" element of contributory infringement, or should the law require some level of substantial contribution besides causation in fact?  If so, did Netcom and/or Klemesrud provide such a substantial contribution?

If a "but for" contribution is sufficient, or if a bulletin board or ISP provides a substantial contribution to the distribution or public display of infringing material, then does notice of infringement, by providing "knowledge" automatically trigger contributory liability?  Or does the defendant, after receiving notice and therefore knowledge, have a period of time in which to "take down" the infringing material from the bulletin board or the Website in order to avoid liability?  Which rule best comports with fairness?  with the incentive system underlying copyright law?

6. Finally, consider Netcom's and Klemesrud's vicarious liability. Did Netcom and Klemesrud have the right and ability to control the infringing material? Is the same likely to be true of all ISPs and bulletin-board operators?

Was the court right to find no direct financial benefit?  What standard for direct financial benefit did the court apply, and is that standard appropriate?  Is the Netcom courts standard for direct financial consistent with that applied by the Ninth Circuit in Fonovisa?  Can you distinguish the two cases on their facts?

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