Vanderbilt Law Review

First Page



Copyright law operates primarily as a strict liability, regime whenever infringing behavior constitutes a direct infringement of copyright. When behavior qualifies as an indirect infringement, gaps in copyright protection are filled by principles of contributory and vicarious liability. Although the application of these liability constructs has never been a simple matter, recent growth in the on- line industry has resulted in a dramatic confusion and divergence of views. In particular, the law is currently unclear in two important respects. First, opinions differ greatly as to whether computer bulletin board operators ("sysops") should incur liability for the infringing misdeeds of individual subscribers. Second, the law is unclear regarding whether an individual subscriber can be held liable merely for browsing a copyrighted work that resides on a computer bulletin board system ('BBS") without the copyright owner's permission.

This Note analyzes these issues by reference to the factual scenario in Playboy Enterprises, Inc. v. Frena, which reflects the fact pattern underlying virtually all of the relevant cases. First, subscriber A uploads unauthorized copyrighted material to a BBS. Second, subscriber B browses the copyrighted material without downloading it. Third, subscriber C downloads the copyrighted material. At all times during the fact pattern, the sysop has no actual knowledge of the presence of the unauthorized copyrighted material on the BBS.