Courts have moved swiftly to address copyright infringement when given the opportunity. Two important cases that involve direct copyright infringement in the on-line world are Playboy v. Frena and Sega v. MAPHIA.
In Playboy v. Frena, Playboy, sued George Frena, a computer bulletin board service operator, for copyright infringement of pictures that were scanned into the computers and on the computer system operated by Frena. Although Frena claimed he did not scan the images on the board himself, the court still analyzed the copyright act to decide if he was liable as a contributory infringer.
First, the court had to establish copyright infringement by Frena, by showing ownership of the copyright in Playboy. Ownership was easy to find as the photographs were all registered and had valid copyrights. To determine if copying, occurred, the court asked “whether defendant Frena had access to the allegedly infringing work and was the allegedly infringing work “substantially similar. Since millions of prints of Playboy exist in the market place, access was proven. Additionally, to prove substantial similarity, the court looked at the pictures and except for minor changes, like taking out the Playboy trademark, the pictures were identical. The court held Frena liable for two reasons. First “Frena supplied a product (bulletin board service) containing unauthorized copies of a copyrighted work and second the (public) display rights of Playboy had been infringed upon by the defendant Frena.”
In Sega v. MAPHIA, the defendant MAPHIA bulletin board service, was sued for copyright infringement by Sega, the maker of popular computer entertainment software. The court found infringement of the software by MAPHIA noting that “even if defendant does not know exactly when games will be uploaded or downloaded from the MAPHIA bulletin board, their role in copyright including provision of facilities, direction, knowledge, and encouragement, amounts to contributory copyright infringement.” Thus, the court in granting a preliminary injunction against MAPHIA recognized that an infringement occurs even if the BBS owners did not know of this activity.
Playboy and Sega demonstrate that courts will incorporate regular copyright infringement law in network computer operations. In addition, both these cases involve closed BBS’s with only a limited audience. The internet and an internet service provider may be liable to so much more information, since the internet connects computer networks and many BBS’s together. With such swift decisions on relatively new issues of on-line infringement, the issue then becomes what are the defenses a copyright holder can have in such cases.