U.S. Judge Rules Internet Services May Be Liable for Postings : Courts: Decision would apply to messages that bulletin board operator and access provider know are copyright violations.


In a decision that may help answer one of the biggest legal questions on the electronic frontier, a federal judge has ruled that a Los Angeles bulletin board operator and a major Internet access provider can be held liable for copyright violations committed by one of their users--but only if they know that illegal copyright infringement is taking place.

The case involves claims by the Church of Scientology that Dennis Erlich, a former church official turned critic, used the bulletin board--operated by Tom Klemesrud of North Hollywood--and Netcom Online Services to post material on the Internet that infringed its copyrights. Klemesrud and Netcom had contended they could not by definition be liable for material posted by their subscribers.

In a 32-page ruling dated Nov. 21, U.S. District Judge Ronald Whyte in San Jose rejected Netcom’s motion for summary judgment and a related motion by Klemesrud.

“If plaintiffs can prove the knowledge element,” Whyte wrote, “Netcom will be liable for contributory infringement since its failure to simply cancel [Erlich’s] infringing message and thereby stop an infringing copy from being distributed worldwide constitutes substantial participation in Erlich’s public distribution of the message.”


The case will likely to go to trial early next year. Another similar case brought by the Church of Scientology against an individual and his Internet access provider in Virginia may be decided first. The church, which has aggressively fought alleged copyright infringement through lawsuits and a controversial civil search-and-seizure procedure--sent out a press release claiming the ruling as a victory.

“The court found there is a duty to act when they have knowledge that there is an infringement going on,” said Helena Kobrin, an attorney for the church. “You can’t just put equipment out there and let people use it for illegal purposes.”

But Klemesrud and Netcom--both of whom declined to close down Erlich’s account after the church informed them of the alleged violations--note that the judge left open the question of whether the defendants had enough knowledge to determine whether Erlich’s posts did in fact infringe on the Scientology copyright.

“Given the context of a dispute between a former minister and a church he is criticizing, Netcom may be able to show that its lack of knowledge that Erlich was infringing was reasonable,” Whyte wrote.


The slippery issue of whether the gatekeepers of cyberspace--access providers such as Netcom, Prodigy or America Online--can be held responsible for what gets posted in public forums by the thousands of users on their networks has been broached in several court cases in recent years but never definitively answered.

A widely watched libel suit that sought to hold Prodigy accountable for what a subscriber said about a company on-line was recently settled without going to trial. But the Netcom case is even broader, because it involves posting to one of the thousands of Internet forums known as the Usenet.

The Usenet--and the newsgroup Erlich posted to: alt.religion.scientology--reaches a far wider audience than the proprietary forums on Prodigy or America Online. It is also far more difficult to monitor.

"[The church’s] theory would conceivably subject every Usenet server to liability for an infringing posting,” Netcom attorney Barbara Shufro said. “It would very possibly prevent the Usenet from working at all.”

Civil libertarians argue that putting system operators into the position of having to monitor all the data that travels across their networks would essentially disable the fast-growing network.

But proponents for stricter controls argue that if intellectual property is not protected, the network will crumble anyway.

“This is one of the key issues that’s going to determine how the future of the networks develop,” said Shari Steele of the Electronic Frontier Foundation.