SPA's Press Release

Wed Oct 16 17:35:20 PDT 1996

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To: cypherpunks at toad.com
Date: Wed Oct 16 17:11:03 1996
After researching the SPA's lawsuit for awhile, I figured I might as well post 
the SPA's press release regarding their lawsuit against C2 to see if it'll spur 
some more discussion on it.  If it weren't for the seriousness of the matter, I 
would almost be amused by the SPA's lawsuit.  Their term, "contributory 
infringement" is almost like suing the bartender because a customer got into a 
wreck while drunk.  Note the "should have nown." Here's their specification for 
this, copied from http://www.spa.org/piracy/risk.htm.

"Anyone who knows or should have known that he or she is assisting, inducing or 
materially contributing to infringement of any of the exclusive rights by 
another person is liable for contributor infringement. "
ie -
     posting of serial numbers 
     posting of cracker utilities 
     linking to FTP sites were software may be unlawfully obtained 
     informing others of FTP sites were software may be unlawfully obtained 
     aiding others in locating or using unauthorized software 
     supporting sites upon which the above information may be obtained 
     allowing sites where the above information may be obtained to exist on a  
     server 

Then there's their Vicarious Liability for Infringement by Another Person, 
outlined by:

"Anyone who has the authority and ability to control another person who 
infringes any of the exclusive rights and who derives a financial benefit 
therefrom, is vicariously liable for the infringement of another person."
ie -
     ISPs who have warez or pirate sites on their system 
     ISPs who have pirates for customers 
     sys admins for newsgroups or IRC where pirate activity takes place 

It's interesting to note that this web page is entitled "Theories of Copyright 
Infringement", and the only listing (which I didn't copy) which references a 
law (section 501(a) of the Copyright Act, to be exact) is direct infringement 
- -- the kind we all know and love.  I'm curious, do the Contributory Infringment 
and the Vicarious Liability for Infringment By Another Person claims have any 
legal basis, or are they just the inane rantings they appear to be? 

In a fair world, this wouldn't stand up in court...but unfortunately, with 
juries today...you get the point.  Anyway, here's their press release, again a 
direct cut from http://www.spa.org/piracy/releases/netpir.htm.

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SPA Files Copyright Suits Against ISPs and End Users
Internet Anti-Piracy Campaign Launched 

(Oct.10, 1996 --Washington, D.C.) -- The Software Publishers Association (SPA) 
announced today that it has filed five civil lawsuits for copyright 
infringement occurring on the Internet. Three of the lawsuits were filed 
against Internet service providers (ISPs), and the remaining two were filed 
against individual end users. Additionally, SPA launched its Internet
Anti-Piracy Campaign, which includes education and enforcement components, in 
an effort to educate and work cooperatively with ISPs regarding copyright 
infringement. 

ISP lawsuits were filed on Oct. 7 and 8 against Community ConneXion of Oakland, 
Calif.; GeoCities of Beverly Hills, Calif.; and Tripod Inc. of Williamstown, 
Mass. The SPA members named as plaintiffs in all three suits were Adobe Systems 
Inc., Claris Corp. and Traveling Software Inc. In each case, SPA first 
contacted the ISP and requested that the infringing material be removed, but 
the ISP failed to respond and cooperate. 

SPA also filed suit against Jeffrey Workman of Auburn, W. V., and Patricia 
Kropff of Scottsdale, Pa, on behalf of Adobe Systems Inc., Claris Corp., Corel 
Corp., Datastorm Technologies Inc. and Novell, Inc. In each of these instances, 
SPA received reports of alleged copyright infringement on certain Web sites, 
and with the assistance of the ISPs, tracked the individuals responsible for 
posting the infringing material. 

"These lawsuits send a clear signal to ISPs and end users that neither direct 
nor contributory copyright infringement will be tolerated. The Internet does 
not provide a safe haven for these types of activities," said Ken Wasch, SPA 
president. 

SPA's Internet Anti-Piracy Campaign (IAPC), which is outlined at 
http://www.spa.org/piracy/iapc.htm, contains information explaining why ISPs 
may be liable for copyright infringement, the risks involved and seven warning 
signs that infringing activity may be taking place on the ISP's server. 
Additionally, ISPs may sign an ISP Code of Conduct to show they have adopted
the operating practices encouraged under the copyright law. 

Upon receiving a report of alleged copyright infringement on the Internet, SPA 
confirms the unlawful activity and sends a letter to the ISP servicing the 
infringing user. In most cases, the ISP cooperates and remedies the situation. 
If the infringing user can be identified -- as alleged in the Workman and 
Kropff cases -- SPA may then choose to seek action against the end user. If the 
ISP is unwilling to stop the unlawful activity, SPA may choose to file suit 
against the ISP. 

"Our intentions are to work cooperatively with ISPs. A key element of the IAPC 
is the ISP Education Program devoted to alerting ISPs to their potential 
liability and providing them with the tools and guidance to protect 
themselves," said Joshua Bauchner, SPA's Litigation Coordinator. 

"The IAPC maintains SPA's traditional balance between education and 
enforcement. We first make contact in an effort to amicably resolve the matter, 
and only when absolutely necessary do we turn to litigation." 

An integral part of the cooperative effort between SPA and ISPs is the ISP Code 
of Conduct. This simple agreement asks that ISPs protect themselves from 
liability by stopping pirate activity on their systems. In return, SPA will 
attempt to contact the ISP if it receives a piracy report concerning it -- 
before initiating other action. 

Piracy has taken many forms on the Internet. These include making unauthorized 
copies of software available for download, the posting of serial numbers, 
cracker and hacker utilities and links to pirate FTP sites. Although many 
believe piracy is limited to "warez" or illegal copies of software, it extends 
beyond that narrow definition. Under the law, anyone who knows -- or should 
have known -- of the infringement and who assists, encourages or induces the 
infringement is liable for indirect infringement. In each of the actions SPA 
filed, at least two of the above infringements were present. 

For additional information please visit the Internet Anti-Piracy Campaign site 
at http://www.spa.org/piracy/iapc.htm. The ISP Education Program information is 
available at http://www.spa.org/piracy/ispinfo.htm. To report a case of piracy 
please contact SPA's hotline at (800) 388-7478, piracy at spa.org or complete an 
on-line intake form at http://www.spa.org/piracy/pirreprt.htm. 

SPA is the leading trade association of the desktop software industry, 
representing the leading publishers as well as many start-up firms in the 
business, home office, consumer, education and entertainment markets. Its 1,200 
members account for 85 percent of the sales of the U.S. packaged software 
industry. SPA press releases are available through fax on demand at
(800) 637-6823. 

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Sean Sutherland         | GCS/C d- s+:+ a--- C+++ V--- P L E- W++ N++
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            In UNIX, no one can hear you scream.
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