This case established two things. First, courts can find against a defendant in an intellectual property dispute whether or not the defendant is aware of such activity. Second, intellectual property protection extends to all copies of a given work regardless of how they are made or the media on which they are presented. good read: http://www.worldofspectrum.org/EmuFAQ2000/AppendixB.htm Bunch of court case stuff.

On 6/12/05, Jack <quiet_celt@yahoo.com> wrote:

Please tell us which case of the hundreds in this FAQ is the one you are referring to.

Search Function is your friend. =) Playboy Enterprises, Inc. v. George Frena. 839 F.Supp. 1552 (M.D. Fla., 1993). George Frena, the sysop of the Techs Warehouse BBS, had 170 digitized images from both Playboy and Playgirl magazine posted to his computerized bulletin board system. The two magazines were commercial adult publications protected under copyright law. Playboy Enterprises, owner and publisher of both magazines, sued Frena for copyright infringement. The Federal District Court acknowledged Frena's claims that the uploading had been done by his users without his approval; however, it still found him liable for intellectual property violation. It ruled that Frena's users had illegaly copied the pictures by digitizing them; furthermore, Frena had infringed on exclusive vendor distribution rights by making the pictures available for download by his users. It also found Frena in violation of trademark law, since the infringing material contained registered trademarks belonging to Playboy Enterprises (the Playboy and Playgirl logos). This case established two things. First, courts can find against a defendant in an intellectual property dispute whether or not the defendant is aware of such activity. Second, intellectual property protection extends to all copies of a given work regardless of how they are made or the media on which they are presented. all information taken from: http://www.worldofspectrum.org/EmuFAQ2000/AppendixB.htm

Ok, guys, throwing case citations around is not lawyering, and has nothing to do with rendering a legal opinion such as whether you might be liable for something. All you've done is prove that none of you are lawyers. The law is a living, evolving thing. Properly done, an argument such as this one would consist of a series of citations illustrating various conclusions. A well made argument would include citations which appeared to find against the point, with explanation of how they fail to be conclusive. The law regarding copyright material posted on BBSs, when shutch dial-up beasts were common, evolved from ignorance and obscurity to lawsuit happiness, to reasonable and civil regulation. (Sound familiar?) Initially, there were rogue findings against the operators, but it was eventually established, in large part through suits against AOL, that the Operators were not labile, provided they a) took reasonable precautions such as requiring a click-through notice not to post, b) removed offending material when notified, and usually c) provided information assisting the persecution - er, prosecution - of the actual "offender", the person who posted the material. Post internet cases have generally supported this trend, although things are still falling out. The carrier or host is not generally liable, especially if he co-operates with the prosecution of the original poster. There is an even older body of law that has yet to really be applied to digital work, which distinguishes between the imaginary harm of a "lost sale" caused by a copy being provided for free, and a competitive sale made by someone of a copy obtained through means outside the normal distribution channels. The latter is the only ligitimate instance where real damage can be claimed, except in extremely unusual circumstances. Unfortunately, a lot of people are going to either settle out of court or loose before the courts recall this basic principle. As a former BBS operator who's done this, I suggest that you do the following if you're concerned that you may be placed in danger of being accused of harboring pirated property: 1) Create a policy that states a) how you will ensure that you have informed your clients or customers that you do not allow copyright infringement, b) what you will do with alleged infringing material) what action you will take against anyone posting such material, and d) what degree of cooperation you will provide the claimant/prosecutors. 2) Hire/retain/PAY a real lawyer to review that policy, and to provide you with his written opinion of whether it's adequate. Get an actual IP lawyer to do this - there are several good ones in town, besides some of the biggest names in the trade having offices here. I believe Shook, Hardy, and Bacon do this. If you decide you want to make a stand for what's right, rather than just expediently CYA, decide how you'll handle it and place the lawyer on retainer. One of the tricksy bits here is what standard you require for a claim of infringement. It's safest to take things down the minute you are informed of a claim, but you can end up looking pretty stupid if it turns out the materiel is being posted by the actual copyright holder.

thanks for reminding us all that we are not lawyers! this is a place for free expression and if anyone reading the copyright responses thought otherwise and thereafter used the information to proceed forward in their online posting management of his/her site without consulting with a REAL lawyer, then that is because of his/her own stupidity. this group can get real annoying sometimes with all of the know-it-all ego personalities. so, chill out! later taters! James Riley Jonathan Hutchins <hutchins@tarcanfel.org> Sent by: kclug-bounces@kclug.org 06/14/2005 10:32 PM To kclug@kclug.org cc Subject Re: Somewhat OT: copyright question Ok, guys, throwing case citations around is not lawyering, and has nothing to do with rendering a legal opinion such as whether you might be liable for something. All you've done is prove that none of you are lawyers. The law is a living, evolving thing. Properly done, an argument such as this one would consist of a series of citations illustrating various conclusions. A well made argument would include citations which appeared to find against the point, with explanation of how they fail to be conclusive. The law regarding copyright material posted on BBSs, when shutch dial-up beasts were common, evolved from ignorance and obscurity to lawsuit happiness, to reasonable and civil regulation. (Sound familiar?) Initially, there were rogue findings against the operators, but it was eventually established, in large part through suits against AOL, that the Operators were not labile, provided they a) took reasonable precautions such as requiring a click-through notice not to post, b) removed offending material when notified, and usually c) provided information assisting the persecution - er, prosecution - of the actual "offender", the person who posted the material. Post internet cases have generally supported this trend, although things are still falling out. The carrier or host is not generally liable, especially if he co-operates with the prosecution of the original poster. There is an even older body of law that has yet to really be applied to digital work, which distinguishes between the imaginary harm of a "lost sale" caused by a copy being provided for free, and a competitive sale made by someone of a copy obtained through means outside the normal distribution channels. The latter is the only ligitimate instance where real damage can be claimed, except in extremely unusual circumstances. Unfortunately, a lot of people are going to either settle out of court or loose before the courts recall this basic principle. As a former BBS operator who's done this, I suggest that you do the following if you're concerned that you may be placed in danger of being accused of harboring pirated property: 1) Create a policy that states a) how you will ensure that you have informed your clients or customers that you do not allow copyright infringement, b) what you will do with alleged infringing material) what action you will take against anyone posting such material, and d) what degree of cooperation you will provide the claimant/prosecutors. 2) Hire/retain/PAY a real lawyer to review that policy, and to provide you with his written opinion of whether it's adequate. Get an actual IP lawyer to do this - there are several good ones in town, besides some of the biggest names in the trade having offices here. I believe Shook, Hardy, and Bacon do this. If you decide you want to make a stand for what's right, rather than just expediently CYA, decide how you'll handle it and place the lawyer on retainer. One of the tricksy bits here is what standard you require for a claim of infringement. It's safest to take things down the minute you are informed of a claim, but you can end up looking pretty stupid if it turns out the materiel is being posted by the actual copyright holder. _______________________________________________ Kclug mailing list Kclug@kclug.org http://kclug.org/mailman/listinfo/kclug ----------------------------------------- This e-mail and any attachments are intended only for the individual or company to which it is addressed and may contain information which is privileged, confidential and prohibited from disclosure or unauthorized use under applicable law. If you are not the intended recipient of this e-mail, you are hereby notified that any use, dissemination, or copying of this e-mail or the information contained in this e-mail is strictly prohibited by the sender. If you have received this transmission in error, please return the material received to the sender and delete all copies from your system.