Remailers, law and the Church of Scientology

17 Dec 2003

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AvI Harris Baumstein writes:
...
...
clients'  property   rights.    Courts   are   holding   such
   contributory  infringers  liable.   Two  examples  are:  Sega
   Enterprises Ltd.  v.  Maphia BBS, 30 U.S.P.Q.  2d 1921  (N.D.
   Cal.   1994) and Playboy Enterprises v.  Frena, 839 F.  Supp.
   1152 (M.D.  Fla.  1993).
...
what of these cases? is this just an example of typical lawyerly
intimidation tactics?
Neither case is particularly similar to the remailer situation.
_Maphia_ concerned a business which sold $350 boxes to copy
SEGA programs from and to ROM cartridges; they also sold access
to their BBS which held unlicensed copies of SEGA games. The
court held that the copying devices had no purpose other than to
contribute to infringement, and that when SEGA programs were 
uploaded to the BBS, the upload was made with the knowledge of the
defendants. _Frena_ involved a BBS operator who made copyrighted
pictures from Playboy available on his BBS; Playboy trademarks
were removed from the pictures prior to posting. Access to the
BBS was only available to people who paid for access, or who
otherwise did business with the defendant. The court's discussion
about the defendant's mental state in _Frena_ consists of a 
single sentence, and a cite to Jay Dratler, Jr., "Intellectual
Property Law: Commercial Creative, and Industrial Property",
$ 6.01[3] at 6-15(1991). The court seems to be addressing direct,
not contributory infringement. (I don't have Dratler available
easily right now so I dunno what it says.)

_Maphia_ does cite text from _Casella v. Morris_ 820 F.2d 362 (11th
Cir. 1987): "'[o]ne who, with knowledge of the infringing activity,
induces, causes or materially contributes to the infringing conduct
of another' may be held liable as a contributory infringer." (quoting
from _Gershwin Publishing Corp. v. Columbia Artists Management, Inc._,
443 F.2d 1159,1162 (2nd Cir. 1971).

I don't think the cases cited stand for what the Church's attorney
says they stand for. I'm not convinced that the "contributory 
infringement" doctrine can be reasonably applied to remailer 
operators; and I'm not sure that remailer operators have the sort
of mental state (knowledge) required to create liability. The
letter to operators may be part of a strategy to establish 
knowledge of the potential for misuse, to later prevent 
operators from claiming a lack of knowledge. I'm not sure that
a vague warning "someone might use your service to infringe
a copyright" is strong enough to establish that sort of knowledge.
As a remailer operator, I don't see a good way to eliminate
infringing uses without also eliminating non-infringing uses;
the crazy politics around this Scientology stuff makes it seem
like the perfect place for people to use remailers. 

I also think the non-commercial and political nature of postings
to the Scientology groups may make a fair-use analysis turn out
differently than in _Maphia_ and _Frena_; both defendants tried
a fair use argument, and both lost. 

On the other hand, I'm a law student, not an attorney, and the
person who wrote that letter certainly knows more about law in
general and about copyright than I do. I may be totally hosed.

Coincidentally or not, I had a long chat today with the sysadmin
of the system immediately upstream from mine. He said, out of
the blue, "So .. you run a remailer?". In the past he has been
privacy-friendly and anon-friendly, and seems to remain so 
today, but the timing was a little peculiar. I explained about
the remailers and told him how to get Raph's list and about
alpha.c2.org and all the rest of it. 

Remailers, law and the Church of Scientology

Greg Broiles