1 See 17 U.S.C. § 501(a) (Supp. V 1993). Anyone who "trespasses into [the copyright owner's] exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute" is an infringer of the copyright. Sony, supra note 22, at 433.
2 See discussion of the scope of the exclusive rights supra at pp. 63-72. For instance, activities such as loading a work into a computer, scanning a printed work into a digital file, uploading or downloading a work between a user's computer and a BBS or other server, and transmitting a work from one computer to another may be infringements (in those cases, of the reproduction right). See, e.g., MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993) (the turning on of the computer, thereby causing the operating system to be copied into RAM, constituted an infringing reproduction of the copyrighted software); Advanced Computer Services v. MAI Systems Corp., 845 F. Supp. 356 (E.D. Va. 1994) (loading software into computer's random access memory constituted infringing reproduction); see also 2 NIMMER ON COPYRIGHT § 8.08 at 8-103 (1993) ("input of a work into a computer results in the making of a copy, and hence . . . such unauthorized input infringes the copyright owner's reproduction right").
3 The innocence or willfulness of the infringing activity may be relevant with regard to the award of statutory damages. See 17 U.S.C. § 504(c) (1988); see also discussion of remedies infra pp. 130-33.
4 See 17 U.S.C. § 106 (1988 & Supp. V 1993).
5 See HOUSE REPORT at 61, reprinted in 1976 U.S.C.C.A.N. 5674 ("references to 'copies or phonorecords' are intended [in Section 106(1)-(3)] and throughout the bill to include the singular"; "the right 'to reproduce the copyright work in copies or phonorecords' means the right to produce a material object in which the work is duplicated, transcribed, imitated, or simulated . . . "). Further evidence of the intent of Congress to make even a single act of unauthorized reproduction an infringement is found in specific exemptions created for certain single-copy uses. See, e.g., 17 U.S.C. §§ 108(a), 108(f)(2), 112(a) (1988); see also Texaco, supra note 251, at 17.
6 See, e.g., Rockford Map Publishers, Inc. v. Directory Serv. Co., 224 U.S.P.Q. 851 (C.D. Ill. 1984), aff'd, 768 F.2d 145 (7th Cir. 1985), cert. denied, 474 U.S. 1061 (1986); Sub-Contractors Register, Inc. v. McGovern's Contractors & Builders Manual, Inc., 69 F. Supp. 507, 509 (S.D.N.Y. 1946). It is common for publishers of directories and other compilations to deliberately insert mistakes into the work (such as periodically adding a fictitious name, address and phone number in a telephone directory) to detect and help establish copying. See 2 H. ABRAMS, THE LAW OF COPYRIGHT § 14.02[B][3][c], at 14-19 to 20 (1993).
7 This should be implied in the requirement that there be copying of the copyrighted work. Ideas and facts, of course, are not copyrightable. In the case of compilations, such as databases, if enough facts are copied, the copyrighted expression (the selection, arrangement or coordination of the facts) may be copied and infringement may be found. See CONTU Final Report at 42 ("The use of one item retrieved from such a work -- be it an address, a chemical formula, or a citation to an article -- would not . . . conceivably constitute infringement of copyright. The retrieval and reduplication of any substantial portion of a data base, whether or not the individual data are in the public domain, would likely constitute a duplication of the copyrighted element of a data base and would be an infringement.").
8 See Donald v. Zack Meyer's T.V. Sales & Service, 426 F.2d 1027, 1030 (5th Cir. 1970) ("paraphrasing is equivalent to outright copying"), cert. denied, 400 U.S. 992 (1971); Davis v. E.I. DuPont de Nemours & Co., 240 F. Supp. 612, 621 (S.D.N.Y. 1965) ("paraphrasing is tantamount to copying in copyright law"); see generally 3 NIMMER ON COPYRIGHT § 13.03[A] at 13-28 to 13-58 (1993). Nimmer identifies two bases upon which courts impose liability for less than 100 percent verbatim copying: (1) "fragmented literal similarity" (where words, lines or paragraphs are copied virtually word-for-word, although not necessarily verbatim) and (2) "comprehensive nonliteral similarity" (where the "fundamental essence or structure" of a work is copied); see also P. GOLDSTEIN, COPYRIGHT § 7.2.1 at 13-17 (1989). Goldstein identifies three types of similarity: (1) where the infringing work "tracks" the original work "in every detail," (2) "striking similarity" (where a brief portion of both works is "so idiosyncratic in its treatment as to preclude coincidence") and (3) similarities that "lie beneath the surface" of the works ("[i]ncident and characterization in literature, composition and form in art, and rhythm, harmony and musical phrases in musical composition"). Id. at 13 (citations omitted).
9 For analyses of the various tests that have been used, see 3 NIMMER ON COPYRIGHT § 13.03[A] at 13-28 to -58 (1993); M. LEAFFER, UNDERSTANDING COPYRIGHT LAW §§ 9.5 - 9.7 at 268-76 (1989).
10 See Nichols v. Universal Pictures, Corp., 45 F.2d 119, 121 (2d Cir. 1930).
11 See Peter Pan Fabrics Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir. 1960).
12 See Z. Chaffee, Reflections on the Law of Copyright: I, 45 COLUMBIA L. REV. 503, 513 (1945).
13 See Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 908-09 (3d Cir.), cert. denied, 423 U.S. 863 (1975) (subtracting all but the "stick figures" from chart as non-protectible subject matter); Alexander v. Haley, 460 F. Supp 40, 46 (S.D.N.Y. 1978) (finding "alleged infringements display no similarity at all in terms of expression or language, but show at most some similarity of theme or setting. These items, the skeleton of creative work rather than the flesh, are not protected by the copyright laws.").
14 See 429 F.2d 1106 (9th Cir. 1970).
15 See, e.g., Sid & Marty Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977); McCulloch v. Albert E. Price, Inc., 823 F.2d 316 (9th Cir. 1987).
16 See, e.g., Reyher v. Children's Television Workshop, 533 F.2d 87 (2d Cir. 1976); Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607 (7th Cir.), cert. denied, 459 U.S. 880 (1982); Atari Games Corp. v. Oman, 888 F.2d 878 (D.C. Cir. 1989); Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222 (3d Cir. 1986), cert. denied, 479 U.S. 877 (1987).
17 562 F.2d 1157 (9th Cir. 1977).
18 See Pasillas v. McDonald's Corp., 927 F.2d 440, 442 (9th Cir. 1991).
19 See Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1475 (9th Cir. 1992).
20 Krofft, supra note 330, at 1164.
21 862 F.2d 204 (9th Cir. 1988).
22 See also Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1445 (9th Cir. 1994) (approving of district court's use of analytical dissection and agreeing with other courts' use of the "same analysis although articulated differently").
23 982 F.2d 693 (2d Cir. 1992). See Autoskill Inc. v. National Educational Support Systems, Inc., 994 F.2d 1476, 1490-91 (10th Cir. 1993).
24 Other circuits have applied this test. See Engineering Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335, 1343 (5th Cir. 1994); Gates Rubber Co. v. Bando Chemical Indus., Ltd., 9 F.3d 823, 834 (10th Cir. 1993).
25 154 F.2d 464 (2d Cir. 1946).
26 See, e.g., Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir. 1960); Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021 (2d Cir. 1966); Eden Toys, Inc. v. Marshall Field & Co., 675 F.2d 498 (2d Cir. 1982).
27 Ideal Toy Corp. at 1023 n.2.
28 905 F.2d 731 (4th Cir. 1990).
29 See Aliotti v. R. Dakin & Co., 831 F.2d 898, 902 (9th Cir. 1987) (holding that perceptions of children must be considered in substantial similarity analysis because they are intended market for product); Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607, 619 (7th Cir.), cert. denied, 459 U.S. 880 (1982) (holding that "[v]ideo games, unlike an artist's painting, . . . appeal to an audience that is fairly undiscriminating insofar as their concern about more subtle differences in artistic expression").
30 Dawson, supra note 341, at 736.
31 An infringer is anyone who violates "any of the exclusive rights" of the copyright owner. 17 U.S.C. § 501(a) (Supp. V 1993). One of the exclusive rights is "to prepare derivative works based upon the copyrighted work." 17 U.S.C. § 106(2) (1988). A "derivative work" is a work "based upon one or more preexisting works, such as a . . . condensation, or any other form in which a work may be recast, transformed, or adapted." 17 U.S.C. § 101 (1988) (definition of "derivative work"). The Ninth Circuit has suggested that "a work is not derivative unless it has been substantially copied from the prior work." See Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir. 1984) (emphasis added). It is unclear, however, whether the court is suggesting that a derivative work must be substantially similar to the prior work or that it simply must incorporate in some form a portion of the prior work, as noted in the legislative history. See HOUSE REPORT at 62, reprinted in 1976 U.S.C.C.A.N. 5675. The court noted that there is "little available authority" on infringement of the derivative works right. See Litchfield at 1357.
32 17 U.S.C. § 602(a) (1988).
33 HOUSE REPORT at 169-70, reprinted in 1976 U.S.C.C.A.N. 5785.
34 Id. (Section 602 covers "unauthorized importation of copies or phonorecords that were lawfully made").
35 See T.B. Harms Co. v. Jem Records, Inc., 655 F. Supp. 1575 (D.N.J. 1987); Parfums Givenchy, Inc. v. C&C Beauty Sales, Inc., 832 F. Supp. 1378 (C.D. Cal. 1993). Courts are divided as to whether the first sale doctrine limits the ability of copyright owners to enforce the importation rights (as it does with respect to the domestic distribution right). Compare BMG Music v. Perez, 952 F.2d 318, 319 (9th Cir. 1991) (first sale doctrine does not circumscribe importation rights under Section 602) with Sebastian Int'l, Inc. v. Consumer Contacts (PTY) Ltd., 847 F.2d 1093, 1097 (3d Cir. 1988) (contra).
36 See 17 U.S.C. § 602(a) (1988) (subsection does not apply to "(1) importation of copies or phonorecords under the authority or for the use of the Government of the United States or of any State or political subdivision of a State, but not including copies or phonorecords for use in schools, or copies of any audiovisual work imported for purposes other than archival use; (2) importation, for the private use of the importer and not for distribution, by any person with respect to no more than one copy or phonorecord of any one work at any one time, or by any person arriving from outside the United States with respect to copies or phonorecords forming part of such person's personal baggage; or (3) importation by or for an organization operated for scholarly, educational, or religious purposes and not for private gain, with respect to no more than one copy of an audiovisual work solely for its archival purposes, and no more than five copies or phonorecords of any other work for its library lending or archival purposes, unless the importation of such copies or phonorecords is part of an activity consisting of systematic reproduction or distribution, engaged in by such organization in violation of the provisions of section 108(g)(2)"); HOUSE REPORT at 170, reprinted in 1976 U.S.C.C.A.N. 5786.
37 See discussion of transmissions and the distribution right supra pp. 67-69.
38 See discussion infra pp. 213-21.
39 See HOUSE REPORT at 61, reprinted in 1976 U.S.C.C.A.N. 5674. There must be a direct infringement upon which contributory infringement or vicarious liability is based.
40 The concepts of contributory and vicarious liability are well-established in tort law. Contributory infringement of intellectual property rights was first codified in patent law. See 35 U.S.C. § 271(c) (1988).
41 Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963) (holding that company that leased floor space to phonograph record department was liable for record department's sales of "bootleg" records despite absence of actual knowledge of infringement, because of company's beneficial relationship to the sales).
42 See, e.g., Dreamland Ball Room, Inc. v. Shapiro, Bernstein & Co., 36 F.2d 354 (7th Cir. 1929); Famous Music Corp. v. Bay State Harness Horse Racing & Breeding Ass'n, Inc., 554 F.2d 1213 (1st Cir. 1977); KECA Music, Inc. v. Dingus McGee's Co., 432 F. Supp. 72 (W.D. Mo. 1977). Indeed, the "cases are legion which hold the dance hall proprietor liable for the infringement of copyright resulting from the performance of a musical composition by a band or orchestra whose activities provide the proprietor with a source of customers and enhanced income. He is liable whether the bandleader is considered, as a technical matter, an employee or an independent contractor, and whether or not the proprietor has knowledge of the compositions to be played or any control over their selection." Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963) (citing some 10 cases).
43 Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971) (holding management firm's authorization of clients' performances of copyrighted compositions to be contributory infringement).
44 A library is exempted from liability for the unsupervised use of reproducing equipment located on its premises provided that the equipment displays a copyright law notice. 17 U.S.C. § 108(f)(1) (1988). This exemption does not apply to the user of such equipment, and no other provider of equipment enjoys any statutory immunity. See 17 U.S.C. § 108(f)(2) (1988).
45 See Universal Pictures Co. v. Harold Lloyd Corp., 162 F.2d 354, 366 (9th Cir. 1947) (rejecting defendant's argument that as an employee, he was not responsible for his employer's decision to use infringing material, in light of defendant's personal selection and appropriation of the protected material).
46 See Boz Scaggs Music v. KND Corp., 491 F. Supp. 908, 913 (D. Conn. 1980) (finding defendant liable based on own admission of responsibility and control over radio performances of protected works).
47 See, e.g., Cable/Home Communication Corp. v. Network Prods., Inc., 902 F.2d 829, 845-47 (11th Cir. 1990).
48 464 U.S. 417 (1984).
49 Id. at 440.
50 Id. at 442. The Court cited two principles of patent law, but used only one as the appropriate analogy for copyright law:
- The Copyright Act does not expressly render anyone liable for infringement committed by another. In contrast, the Patent Act expressly brands anyone who "actively induces infringement of a patent" as an infringer, 35 U.S.C. § 271(b), and further imposes liability on certain individuals labeled "contributory" infringers, § 271(c).
51 Sony, supra note 361, at 442. "In order to resolve that question, we need not explore all the different potential uses of the machine and determine whether or not they would constitute infringement. Rather, we need only consider whether on the basis of the facts as found by the District Court a significant number of them would be noninfringing." Id. The Court declined to "give precise content" to the issue of how much use is needed to rise to the level of "commercially significant." See id.
The four dissenting Justices did not agree that the patent "staple article of commerce" doctrine of contributory infringement was applicable to copyright law. See Sony, supra note 361, at 490-91 n.41 (Blackmun, J., dissenting) ("[t]he doctrine of contributory patent infringement has been the subject of attention by the courts and by Congress . . . and has been codified since 1952, . . . but was never mentioned during the copyright law revision process as having any relevance to contributory copyright infringement"); see also id. at 491 (disagreeing that "this technical judge-made doctrine of patent law, based in part on considerations irrelevant to the field of copyright . . . should be imported wholesale into copyright law. Despite their common constitutional source, . . . patent and copyright protections have not developed in a parallel fashion, and this Court in copyright cases in the past has borrowed patent concepts only sparingly.") Recognizing the "concerns underlying the 'staple article of commerce' doctrine," the dissent concluded that "if a significant portion of the product's use is noninfringing, the manufacturers and sellers cannot be held contributorily liable for the product's infringing uses." See id. at 491 (Blackmun, J., dissenting).52 Id. at 446.
53 See, e.g., Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988) (seller of computer programs that defeat anti-copying protection is not liable as contributory infringer because programs can be used to enable user to make legal archival copies of copyrighted computer programs under Section 117, which the court found to be a substantial noninfringing use). But see RCA Records v. All-Fast Systems, Inc., 594 F. Supp. 335 (S.D.N.Y. 1984) (operator is liable for contributory infringement based on its provision of sound recording facilities where public could make unauthorized phonorecords).
54 Sega Enterprises Ltd. v. MAPHIA, 857 F. Supp. 679 (N.D. Cal. 1994).
55 See id. at 685.
56 See id. at 687. The court found that there was "no need to make archival copies of [Sega's] ROM game cartridges" because the "ROM cartridge format is not susceptible to breakdown" and Sega would replace defective cartridges. See id. at 685. The court also found that it was unlikely that customers would buy the copiers, at a cost of $350, for the purpose of backing up Sega's video game programs, which sold for $30 to $70 each. Id. at 685.
57 For detailed analyses of arguments on both sides of this liability issue, see I. Trotter Hardy, The Proper Legal Regime for "Cyberspace," 55 U. PITT. L. REV. 993 (1994).
58 This differs from other bodies of law with which service providers, as well as broadcasters, newspaper publishers and others, come in contact. Defamation, for example, has a knowledge requirement for liability. This standard is the same whether in a conventional or NII environment. In Auvil v. CBS "60 Minutes," 800 F. Supp. 928 (E.D. Wash. 1992), the court held that a network affiliate which exercised no editorial control over the network broadcast (although it had the power to do so) served only as a conduit and was not liable for republishing defamatory statements. The court borrowed reasoning from book seller cases -- "one who only delivers or transmits defamatory material published by a third person is subject to liability if, but only if, he knows or had reason to know of its defamatory character" -- finding "no logical basis for imposing a duty of censorship on the visual media which does not likewise attach to the print chain of distribution." The court also found that the injured parties were not impaired by limiting conduit liability to those situations where culpability is established; "[t]he generating source, which in a national broadcast will generally be the deepest of the deep pockets, may still be called upon to defend." A similar result was reached in Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y. 1991), where the court held that libelous material uploaded to a bulletin board system by a subscriber did not subject the BBS operator to damages for libel. The court determined that a BBS was a "distributor" (akin to a public library or bookstore) rather than a "republisher," and thus the operator was liable only if it "knew or had reason to know of the allegedly defamatory . . . statements" that had been uploaded.
59 See discussion of innocent infringement infra p. 125.
60 See discussion of contributory infringement and vicarious liability supra pp. 109-14.
61 See Olan Mills, Inc. v. Linn Photo Co., 23 F.3d 1345 (8th Cir. 1994).
62 See P. GOLDSTEIN, COPYRIGHT, § 1.15, at 45 (1989) ("The exercise of due diligence . . . can reduce, but never entirely exclude, the risk of a copyright infringement claim. Copyright law's rule of strict liability poses particularly hard problems for an intermediary, . . . which must accept on faith its author's representation that he originated the work.").
63 The same can be said of other information providers and facilitators, such as book stores, photocopying services, photo finishers, broadcasters, etc.
64 The subscriber may be unknown -- particularly in the case of anonymous messages -- to everyone but the service provider.
65 Some estimates of the number of BBS operators are as high as 100,000.
66 See Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191, 198-99 (1931) (citations omitted) (at the time, infringement of the public performance right required that the performance was "for profit"); see also ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988, 999 (2d Cir. 1983) ("the problems of proof inherent in a rule that would permit innocent intent as a defense to copyright infringement could substantially undermine the protections Congress intended to afford copyright holders").
67 See, e.g., HOUSE REPORT at 159-60, reprinted in 1976 U.S.C.C.A.N. 5775-76. Within the cable compulsory licensing provisions, one narrow exemption from liability was granted with respect to secondary transmissions by independent carriers that provided transmission capacity for the distribution of superstation signals to local cable operators. See 17 U.S.C. § 111(a)(3) (1988). This exemption is only available if the primary transmission is made for reception by the public at large. If the primary transmission is limited to a particular segment of the public, such as subscribers to a service, the exemption does not apply and the standards for copyright liability are fully applicable.
68 See cases cited supra note 355.
69 HOUSE REPORT at 159-60, reprinted in 1976 U.S.C.C.A.N. 5775-76.
70 HOUSE REPORT at 163, reprinted in 1976 U.S.C.C.A.N. 5779.
71 Id.
72 3 NIMMER ON COPYRIGHT § 13.08 at 13-291 (1994). See P. GOLDSTEIN, COPYRIGHT § 9.4 at 162 (1989) ("the standard rationale for excluding innocence as a defense to copyright infringement is that, as between the copyright owner and the infringer, the infringer is better placed to guard against mistake"; "the strict liability rule should discipline an infringer, who might otherwise mistakenly conclude that his copying will not infringe the copyrighted work, to evaluate the legal consequences of his conduct more carefully").
73 Playboy Enterprises Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993).
74 Id. at 1559.
75 Sega Enterprises Ltd. v. MAPHIA, 857 F. Supp. 679 (N.D. Cal. 1994).
76 Id. at 686-87. With regard to the contributory liability issues, the court found that the BBS operator had knowledge of the uploading and downloading of unauthorized copies of Sega's copyrighted video games and that it solicited the copying of the games. Id. at 683.
77 See Frank Music Corp. v. CompuServe Inc., Civil Action No. 93 Civ. 8153 (JFK) (S.D.N.Y.) (complaint filed Nov. 29, 1993). The Complaint alleges that defendant, by providing access to its BBS by subscribers, engaged in: (1) "permitting, facilitating and participating in the recording of performances of the [Plaintiffs' works] into, and storing such recordings in, CompuServe's computer database by permitting and enabling its paying subscribers to upload such performances thereto"; (2) "maintaining a storage of unauthorized recordings of [the Plaintiffs' works] (uploaded by its subscribers) in and as part of CompuServe's computer database"; and (3) "permitting, facilitating and participating in the recording (i.e., re-recording) of the performances of [the Plaintiffs' works] (theretofore stored in its computer database) by permitting and enabling its paying subscribers to download such recorded performances therefrom." Complaint at 6-7. In addition, the Plaintiffs allege that CompuServe had "control over the nature and content of materials stored in its Bulletin Board and downloaded therefrom"; that CompuServe "had actual knowledge of, or in the exercise of reasonable diligence could have determined, the nature and content of materials stored in its Bulletin Board and downloaded therefrom"; and that CompuServe "had actual notice, or in the exercise of reasonable diligence could have determined, that recordings of [the Plaintiffs' works] were uploaded (recorded) to, stored in, and downloaded (re-recorded) from its computer database." See Complaint at 7.
78 See Religious Technology Center v. NETCOM, No. C95-20091 (N.D. Cal.) (verified first amended complaint filed March 3, 1995).
79 Under the Communications Act of 1934, a common carrier is required to furnish service to the public upon reasonable request. See 47 U.S.C. § 201. A common carrier is defined as "any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio . . . ." See 47 U.S.C. § 153(h). The Supreme Court examined this somewhat circular definition and found that a common carrier in the communications context is one that "makes a public offering to provide [communications facilities] whereby all members of the public who choose to employ such facilities may communicate or transmit intelligence of their own design and choosing . . . ." See Federal Communications Commission v. Midwest Video Corp., 440 U.S. 689, 701 (1979) (citing Report and Order, Industrial Radiolocation Service, Docket No. 16106, 5 F.C.C.2d 197, 202 (1966)).
80 See P. GOLDSTEIN, COPYRIGHT § 1.15 at 45 (1989) ("[a]n intermediary can to some extent protect itself by shifting or sharing the risk of infringement through a warranty from the author that he originated the work in question or through an errors and omissions insurance policy").
81 See 17 U.S.C. § 502 (1988).
82 Superhype Publishing, Inc. v. Vasiliou, 838 F. Supp. 1220, 1226 (S.D. Ohio 1993).
83 See 17 U.S.C. § 503(a) (1988).
84 See 17 U.S.C. § 503(b) (1988).
85 17 U.S.C. § 504 (1988). Statutory damages generally are not available if the infringement occurred before the effective date of registration of the work, unless the infringement occurred after first publication and registration was made within three months of first publication. See 17 U.S.C. § 412 (1988 & Supp. V 1993).
86 See 17 U.S.C. § 504(b) (1988).
87 See 17 U.S.C. § 504(c)(1) (1988).
88 17 U.S.C. § 504(c)(2) (1988).
89 D.C. Comics Inc. v. Mini Gift Shop, 912 F.2d 29, 35 (2d Cir. 1990); Innovative Networks, Inc. v. Satellite Airlines Ticketing, Inc., 871 F. Supp. 709, 721 (S.D.N.Y. 1995). However, the court must remit statutory damages if (1) the infringer "believed and had reasonable grounds for believing" that the use was a fair use, and (2) the infringer was a nonprofit educational institution, library or archives (or its employee or agent) and infringed the reproduction right or a public broadcasting entity (or a person who "as a regular part of the nonprofit activities" of a public broadcasting entity) that infringed by performing a published nondramatic literary work or reproducing a transmission program embodying a performance of such work. See 17 U.S.C. § 504(c)(2) (1988).
90 See 17 U.S.C. § 504(c)(2) (1988) ("where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court . . . may reduce the award of statutory damages to a sum of not less than $200"); D.C. Comics Inc., supra note 402, at 35 (defendant's lack of business sophistication and absence of copyright notice on copies were basis for a finding of innocent infringement and statutory damages of only $200). A person who is misled and innocently infringes by relying on the lack of a copyright notice on a copy of a work that was lawfully publicly distributed before March 1, 1989, is not liable for any damages (actual or statutory) for infringements committed before actual notice of registration of the work is received. 17 U.S.C. § 405(b) (1988). The court may allow, however, the recovery of any of the infringer's profits attributable to the infringement. Id.
91 See 17 U.S.C. § 504(c)(2) (1988).
92 Twin Peaks Prods., Inc. v. Publications Int'l, Ltd., 996 F.2d 1366, 1382 (2d Cir. 1993); Video Views, Inc. v. Studio 21, Ltd., 925 F.2d 1010, 1020 (7th Cir.), cert. denied, 502 U.S. 861 (1991).
93 17 U.S.C. § 505 (1988).
94 Id.; see also Roth v. Pritikin, 787 F.2d 54, 57 (2d Cir. 1986) (attorney's fees generally awarded to prevailing plaintiffs because Copyright Act is intended to encourage suits to redress infringement); Chi-boy Music v. Charlie Club, Inc., 930 F.2d 1224, 1230 (7th Cir. 1991) (attorney's fees and costs serve to deter infringement, dissuade defendant's disdain for copyright law, and encourage plaintiffs to bring colorable claims against infringers). No attorney's fees may be awarded for an infringement of copyright before its registration unless, in the case of published works, the infringement occurred after first publication and registration was made within three months of first publication. 17 U.S.C. § 412 (1988 & Supp. V 1993).
95 See 17 U.S.C. § 506 (a) (1988).
96 17 U.S.C. § 506(b) (1988).
97 871 F. Supp. 535 (D. Mass. 1994).
98 The indictment alleged that the resultant loss of revenue to the copyright owners was in excess of $1,000,000 over a period of approximately six weeks.
99 17 U.S.C. § 506(c) (1988). The penalties in Section 506(c) apply with regard to copyright notices or "words of the same purport." Id.
100 Id.
101 17 U.S.C. § 506(d) (1988).
102 17 U.S.C. § 506(e) (1988).
103 See Fogerty v. Fantasy, supra note 35, at 1029.
104 See discussion of the fair use defense supra pp. 73-82.
105 See F.E.L. Publications, Ltd. v. Catholic Bishop of Chicago, 754 F.2d 216, 220-22 (7th Cir. 1985); but see Columbia Pictures Indus. v. Redd Horne, Inc., 749 F.2d 154, 161-62 (3d Cir. 1984).
106 See Pacific & Southern Co., Inc. v. Duncan, 572 F. Supp. 1186 (N.D. Ga. 1983), aff'd, 744 F.2d 1490 (11th Cir. 1984).
107 See 17 U.S.C. § 504(c)(2) (1988); see also supra pp. 125-26. If a proper copyright notice was affixed to the published copy to which the infringer had access, the court may not give any weight to a claim of innocent infringement in mitigation of damages, except in limited circumstances involving certain infringers (including nonprofit educational institutions and libraries) who violated certain exclusive rights and who believed, and had reasonable grounds for believing that the use was a fair use. See §§ 401(d), 504(c)(2) (1988); see also 17 U.S.C. § 405(b) (1988) (effect on innocent infringers of omission of copyright notice on copies publicly distributed before March 1, 1989).
108 See 17 U.S.C. § 302(e) (1988) (after a period of 75 years from first publication of a work, or 100 years from its creation, whichever is shorter, a person who obtains from the Copyright Office a certified report that the records relating to the deaths of authors disclose nothing to indicate that the author is living, or died less than 50 years before, may presume that the author has been dead for at least 50 years, and good faith reliance on that presumption is a complete defense).
109 See generally discussion of infringement supra pp. 100-07.
110 Further, no action will lie if the statute of limitations has run. See 17 U.S.C. § 507 (1988).
111 A nonexclusive license may be implied from conduct. See Effects Assocs., Inc. v. Cohen, 908 F.2d 555, 558 (9th Cir. 1990), cert. denied, 498 U.S. 1103 (1991); MacLean Assocs., Inc. v. Wm. M. Mercer-Meidinger-Hansen, Inc., 952 F.2d 769, 779 (3d Cir. 1991); see also 3 NIMMER ON COPYRIGHT § 10.03[A] at 10-38 (1994). Implied licenses, like oral licenses, are always nonexclusive in nature and may be limited in scope. See Oddo v. Ries, 743 F.2d 630, 634 (9th Cir. 1984); Gilliam v. American Broadcasting Cos., 538 F.2d 14, 19-21 (2d Cir. 1976). Delivery of a copy of a work by the copyright owner to the moderator of a newsgroup may imply a license to reproduce and distribute copies of the work to the subscribers of that newsgroup, but may not be evidence of an implied license to reproduce and distribute copies to other newsgroups.
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