## Facts

- Religious Technology Center and Bridge Publications owned copyrights in published and unpublished works by L. Ron Hubbard.
- Dennis Erlich, a former Scientology minister and critic, posted excerpts of Hubbard’s works to the Usenet newsgroup alt.religion.scientology.
- Erlich accessed the Internet through Tom Klemesrud’s bulletin board service (BBS), which in turn connected to Usenet via Netcom, an Internet access provider.
- When Erlich posted messages, they were transmitted to the BBS, briefly stored, automatically copied to Netcom’s computers, and then distributed to other Usenet computers; Netcom stored the postings for roughly 11 days.
- After unsuccessful efforts to stop Erlich directly, plaintiffs notified Klemesrud and Netcom and demanded that Erlich be blocked or that postings be screened; Netcom declined to prescreen or terminate service.
- Plaintiffs sued Netcom (and others) alleging direct, contributory, and vicarious copyright infringement and sought preliminary injunctive relief against Netcom and Klemesrud.

## Issues

1. Whether an Internet access provider commits direct infringement when its systems automatically copy and store user-posted content as part of routing and Usenet distribution.
2. Whether an access provider may be liable for contributory infringement by continuing to transmit and store content after receiving notice of alleged infringement.
3. Whether an access provider is vicariously liable when it provides general connectivity but does not supervise content and does not profit specifically from the alleged infringement.
4. Whether plaintiffs were entitled to a preliminary injunction against Netcom and Klemesrud on the existing record.

## Decision

- Netcom’s motion for summary judgment was denied in part and granted in part in effect: the court rejected direct and vicarious liability theories against Netcom as a matter of law, but allowed the contributory infringement claim to proceed due to disputed facts.
- The court held Netcom was not a direct infringer where any copying and storage were automatic and indiscriminate, undertaken as part of providing network access rather than initiated by Netcom.
- The court held Netcom was not vicariously liable because plaintiffs did not show a direct financial benefit attributable to the infringement or sufficient supervisory control over the infringing activity.
- The court denied plaintiffs’ motion for a preliminary injunction against Netcom and Klemesrud because plaintiffs did not show the required likelihood of success and key elements turned on unresolved factual questions.
- Klemesrud’s motion for judgment on the pleadings was denied.

## Legal Principles

- Direct copyright infringement by intermediaries requires more than automatic, machine-driven copying that is incidental to providing network services; liability generally turns on volitional conduct rather than passive transmission.
- Contributory infringement may attach where a defendant, with knowledge (actual or constructive) of specific infringing activity, materially contributes to that infringement by continuing to supply the means for distribution.
- Vicarious infringement requires both (a) the right and ability to supervise the infringing conduct and (b) a direct financial benefit from the infringement; general access fees without a causal link to infringement are insufficient.
- Preliminary injunctive relief against network intermediaries may be denied where plaintiffs’ theories of liability are legally deficient or depend on contested facts, and where proposed relief would impose broad monitoring or termination burdens on access providers.

## Conclusion

The court treated automatic ISP routing and temporary storage as insufficient for direct infringement, rejected vicarious liability absent concrete control and infringement-tied profit, and permitted a contributory infringement theory to proceed only to the extent notice and knowledge could be proven on a developed factual record, while denying interim injunctive relief against the intermediaries.


Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361 (N.D. Cal. 1995)