TABLE OF CONTENTS * Table of Authorities * Introduction * Interest of the Amicus Curiae * The Internet * Internet Newsgroups * The Role of an Access Provider * Legal Argument 1. As passive carriers, Internet access providers cannot directly or vicariously violate copyright laws 1. Internet access providers are not directly or vicariously liable for infringing content posted by individual users of interactive computer services 2. The long-standing practice of excluding passive intermediaries from liability underscores the appropriate liability for passive Internet access providers 2. Internet access providers lack the knowledge necessary to be contributorily liable for copyright infringement or liable pursuant to state trade secrets law 3. The impact on the Internet of a ruling adverse to DGS and other Internet access providers * Conclusion * Certificate of Service _________________________________________________________________ IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division __________________________________________ RELIGIOUS TECHNOLOGY CENTER, Plaintiff, v. Civil Action No. 95-1107-A ARNALDO PAGLIARINI LERMA, DIGITAL GATEWAY SYSTEMS, THE WASHINGTON POST, MARC FISHER, and RICHARD LEIBY Defendants. _________________________________________ PRAECIPE Please place the attached Motion for Leave to File Amicus Curiae Brief on the docket for hearing on December 15, 1995. Respectfully submitted, __________________________ Ronald L. Plesser Emilio W. Cividanes Julie A. Garcia Carla Pennington-Cross (Virginia Bar No. 34600) PIPER & MARBURY L.L.P. 8300 Boone Boulevard Suite 500 Vienna, VA 22182 202/861-3900 _________________________________________________________________ IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division __________________________________________ RELIGIOUS TECHNOLOGY CENTER, Plaintiff, v. Civil Action No. 95-1107-A ARNALDO PAGLIARINI LERMA, DIGITAL GATEWAY SYSTEMS, THE WASHINGTON POST, MARC FISHER, and RICHARD LEIBY Defendants. _________________________________________ MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF The Commercial Internet eXchange Association, by counsel, hereby moves the Court for leave to file an amicus curiae brief in the above-captioned matter. Specifically, the copyright infringement and state trade secrets law claims as made against defendant Digital Gateway Systems, Inc., an Internet access provider, are issues of first impression and have grave repercussions for the entire access provider industry. The Commercial Internet eXchange Association is a trade association that represents a large segment of the access provider industry and can offer this Court perspective on the legal issues presented. A memorandum in support of this motion is attached hereto. Respectfully submitted, __________________________ Ronald L. Plesser Emilio W. Cividanes Julie A. Garcia Carla Pennington-Cross (Virginia Bar No. 34600) PIPER & MARBURY L.L.P. 8300 Boone Boulevard Suite 500 Vienna, VA 22182 202/861-3900 _________________________________________________________________ IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division __________________________________________ RELIGIOUS TECHNOLOGY CENTER, Plaintiff, v. Civil Action No. 95-1107-A ARNALDO PAGLIARINI LERMA, DIGITAL GATEWAY SYSTEMS, THE WASHINGTON POST, MARC FISHER, and RICHARD LEIBY Defendants. _________________________________________ MEMORANDUM OF LAW OF THE COMMERCIAL INTERNET EXCHANGE ASSOCIATION IN SUPPORT OF MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF AND OF MOTION FOR SUMMARY JUDGMENT OF DEFENDANT DIGITAL GATEWAY SYSTEMS Ronald L. Plesser Emilio W. Cividanes Julie A. Garcia Carla Pennington-Cross (Virginia Bar No. 34600) PIPER & MARBURY L.L.P. 8300 Boone Boulevard Suite 500 Vienna, VA 22182 202/861-3900 _________________________________________________________________ TABLE OF AUTHORITIES Cases Auvil v. CBS 800 F. Supp. 928 (E.D. Wash. 1992) Avtec Systems, Inc. v. Peiffer 21 F.3d 568, 574 (4th Cir. 1994) Eastern Microwave, Inc. v. Doubleday Sports, Inc. 691 F.2d 125, 132 n.16 (2nd Cir. 1982) 15, 16 Fortnightly Corp. v. United Artists Television, Inc. 392 U.S. 390 (1968) 11, 13 Gershwin Publishing Corp. v. Columbia Artists Management, Inc. 443 F.2d 1159 (2d Cir. 1971) 9, 13 Gold v. U.S. 378 F.2d 588, 594 (9th Cir. 1967) Playboy Enterprises, Inc. v. Frena 839 F. Supp. 1552 (M.D. Fla. 1993) RCA/Ariola International, Inc. v. Thomas & Grayston Co. 845 F.2d 773, 779 (8th Cir. 1988) Religious Technology Center, et al. v. Netcom On-Line Communication Services, Inc., et al. No. C95-20091, slip op. at 8 (N.D. Cal. Nov. 21, 1995) 2, 9, 14 Sega Enterprises, Ltd. v. MAPHIA 857 F. Supp. 679 (N.D. Cal. 1994) Shapiro, Bernstein & Co. v. H.L.Green Co. 316 F.2d 304, 307 (2d Cir. 1963) Sony Corp. of America v. Universal City Studios, Inc. 464 U.S. 417 (1984) 12, 13, 14 Teleprompter Corp. v. Columbia Broadcasting System, Inc. 415 U.S. 394 (1974) WGN Continental Broadcasting Co. v. United Video, Inc. 685 F.2d 218, 624 (7th Cir. 1982) Statutes 17 U.S.C. § 106 17 U.S.C. § 111(a)(3) 18 U.S.C. § 1461 18 U.S.C. § 1462 Uniform Trade Secrets Act, Va. Code Ann. § 59.1-336 (Michie 1950) Other David R. Johnson, "Traveling in Cyberspace," Legal Times, April 3, 1995, at 26 Restatement (Second) Torts, § 581(1) _________________________________________________________________ Introduction The Commercial Internet eXchange Association ("CIX") hereby respectfully submits this brief in support of its motion for leave to file a submission as amicus curiae. The issues before this Court are whether an Internet access provider ("IAP") is liable for copyright infringement or for trade secret misappropriation where the IAP had no knowledge or control of the allegedly infringing material and merely provided transport, routing, switching and relaying of the messages.(Footnote) The trade secret claim raises an issue of first impression while the copyright claim raises issues of first impression in this Circuit and issues currently under consideration by the Congress and the Executive Branch. Consequently, the Court's determination of these issues extends beyond the parties to the case and applies to the entire Internet access provider industry. CIX submits that the access provider cannot be liable because of its passivity, its lack of knowledge of the content of the communication it transmits, and its inability to quickly make fine legal distinctions about the purported ownership of particular materials. Should this Court determine that defendant Digital Gateway Systems, Inc. ("DGS"), as an Internet access provider, is liable for copyright infringement or misappropriation of trade secrets merely because it happened to furnish Mr. Lerma with the wires and conduit to the Internet over which he effectuated his allegedly prohibited conduct, it will set a precedent whereby all CIX members may become similarly liable for the content of all communications transmitted through their facilities. Indeed, under some of the proposed theories of liability advanced by Religious Technology Center ("RTC"), every one of the thousands of networks whose servers offered access to the newsgroup to which the DGS subscriber posted his message is subject to copyright and trade secret prosecution by RTC. There is nothing in this case that can distinguish it from any other circumstance where an IAP is simply providing transport, switching, relay or routing. At the heart of this litigation lies a dispute between the copyright owner and a person who published and distributed information and thereby allegedly infringed the rights of the copyright owner. The conduits of these electronic messages, like common carriers of telephone calls, are simply not infringing the copyright of anyone and should not be subject to prosecution. The Internet would fare no better if this Court rules that DGS (and similarly situated access providers) is liable based on the level of "knowledge" imputed by the plaintiff of the existence of allegedly copyrighted and secret materials. On the one hand, the access provider could remove postings at the mere suggestion that they violated the law. This "solution" would allow critics to use the threat of copyright infringement or trade secret misappropriation as a tool to remove any information they found offensive, undesirable, or contrary to their views. It would also potentially violate the rights of subscribers posting lawful messages that were removed based on such unfounded threats. On the other hand, if the access provider did not remove the allegedly infringing posting, it would risk liability based on an unworkable "knowledge" standard that requires it to make split second legal judgments of the type currently before this Court. Holding DGS liable in this case merely for passively connecting Lerma to the Internet would set a precedent for crippling the "information superhighway" and denying our nation the substantial benefits to commerce, education, and entertainment that the rest of the world enjoys. _________________________________________________________________ Interest of the Amicus Curiae CIX is the nation's largest nonprofit trade association comprised of commercial Internet access providers ("IAPs" or "access providers").(Footnote) CIX presently consists of over 100 domestic members and over 50 international members, including large, dominant market participants as well as innovative, entrepreneurial niche providers. CIX's domestic members comprise over 75% of the nation's leading commercial Internet access providers. Nearly half a billion messages pass through the worldwide systems of CIX members daily. See Affidavit of Robert D. Collet ¶ 3 (hereinafter "Collet Affid.") (attached hereto as Exhibit 2). CIX has filed this brief because the resolution of the access provider issues before the Court will affect not only the defendant DGS, but virtually every provider of access to computer communications that permits individuals to self-publish over its facilities. Like telephone companies and others that furnish conduit services, CIX members must be able to transmit, switch, relay and route communications over their facilities without being liable for the substantive content of those communications. Like vendors that lease photocopiers or videocassette recorders, CIX members must be able to provide connections to the Internet without being liable for uses of the facilities that are subsequently deemed unlawful. Consequently, CIX members are vitally interested both in the specific dispute before this Court, and in its grave implications for the future of Internet communications. _________________________________________________________________ The Internet The Internet is a "network of networks" that enables individuals to communicate with one another almost instantaneously via computer regardless of their geographic location. Internet access may be obtained through use of equipment owned by public libraries, universities, commercial online service providers such as America Online or Prodigy, and access providers. The Internet is truly a modern public forum, where the marketplace of ideas central to our nation's First Amendment freedom flourishes. In addition to gaining access to innumerable scientific, educational, and entertainment archives, users may transmit electronic mail (e-mail), join or initiate newsgroups to discuss topics of interest, or participate in or establish bulletin boards to share ideas about particular topics. The Internet, initially controlled by the Defense Advanced Research Projects Agency ("DARPA"), and then the National Science Foundation ("NSF"), was established by the federal government as an alternative system of communications in times of emergency. DARPA and NSF forbade the transmission of commercial messages over their network. As companies large and small began to connect to the Internet during the 1980s, the need grew for commercial access providers that would transfer commercial as well as noncommercial traffic. See Collet Affid. ¶ 5. CIX was formed to meet that need, and it strives to facilitate global connectivity among commercial access providers, to further the development and use of the Internet, and to foster fair and open environments for Internet commercialization. See id. ¶¶ 5, 6. Through the emerging global information infrastructure, the citizens of our country can contact others electronically, with virtually no delay, whether they are in the next state or on another continent. This "information superhighway" has opened cultural, educational, and commercial horizons that only a decade ago seemed unattainable. The commercial Internet access services industry is one of the fastest growing, most innovative industries in America. See Collet Affid. ¶ 5.(Footnote) CIX members, and other access providers, are among the necessary foundations of the emerging global information infrastructure and offer some of the critical tools that corporations, educational institutions, individuals, and others require to communicate and access otherwise unavailable information. In fact, the ubiquitous nature of the Internet is due, in part, to the open network approach fostered by CIX and its members. CIX member networks have a fundamental agreement to interconnect with all other CIX members. There is no restriction on the type of traffic that may be routed between member networks nor any traffic-based charges between CIX member networks. Each member network connects directly or indirectly to all other member networks. The lack of centralized control has been essential to the more recent development of the Internet, and it is one of the features that distinguishes the Internet from "closed" interactive communications systems. See Collet Affid. ¶ 6. _________________________________________________________________ Internet Newsgroups It is important to distinguish between the available types of interactive communications services. Newsgroups are the leading forum for communications on the Internet. They are discussion groups formed by Internet users around topics of common interest. These groups are purely user-initiated, and usually are not moderated by any person or entity. Anyone connected to the Internet may participate in the discussions simply by locating the group and posting a message. The marketplace of ideas so valued by the First Amendment flourishes on the newsgroups, with topics ranging from scientific to political to religious to entertainment. There is no centralized server for the data transmitted to a newsgroup. See Collet Affid. ¶ 7. A system called USENET is a series of networks that share protocols for establishing and participating in Internet newsgroups. There are over 13,000 USENET newsgroups and tens of thousands of USENET participants. USENET is the ultimate public forum: a massive global information exchange open to anyone with the proper equipment. The equivalent of a worldwide Hyde Park Corner, USENET has become the heart of the public discussions taking place on the Internet. Bulletin board services ("BBS"), on the other hand, are closed systems offering services that are not widely available via the Internet. Instead, they are available to a circle of subscribers that are interested in the content featured by that BBS. Whether it runs with a single personal computer out of an individual's home, or it originates from a major online service, a BBS in its basic form consists of a server computer controlled by both the BBS operator with content provided by both the operator and the customers. Many communities, for example, maintain community bulletin boards to update residents on local and regional events. See Collet Affid. ¶ 7. The basic difference in their approaches to distributing data is that a BBS is centralized and tightly controlled whereas the Internet is decentralized and loosely structured. _________________________________________________________________ The Role of an Internet Access Provider Access providers have only a passive role in the transmission of a message from one computer terminal to another. The process of communicating a message is as follows: an individual subscriber formulates a message that he or she would like to "post" to another individual, to a bulletin board, or to a newsgroup. See Collet Affid. ¶ 9. The subscriber either types or scans that material into his own computer. The subscriber activates equipment leased from the IAP, usually through a modem or a dedicated telephone line. See id. In the case of a posting to a newsgroup, the subscriber navigates to his desired group. See id. He then selects the area in which he wants to post his message and enters the commands necessary to transfer the message from his computer terminal to the newsgroup. See id. The subscriber therefore uses the facilities leased from his or her IAP to transfer his message. See id. ¶ 8. The transmission and receipt of electronic messages is prohibitively expensive for individual users; IAPs lease to individual users the hardware and software necessary to complete a communications transaction. Access providers own computers known as "local servers." These are the computers that subscribers may use in posting messages for receipt by particular newsgroups. The subscriber may store postings on the local servers for a period of several days. See Collet Affid. ¶ 10. Local servers are used by the subscriber to post the subscriber's message to servers in other locations that offer access to the newsgroup identified in the message address. See id. ¶¶ 9,10. That is, by posting material at one server site, Internet users post material on all server sites. Other Internet users across the country and around the world can then access the message from their own local servers. See id. In this way, the subscriber uses each local server to transmit and receive messages not only from its own IAP's subscribers but from subscribers of other IAPs as well. See id. ¶ 9. IAPs, and the computers under their control, are unable to take any independent action. Not unlike duplicating machines, in the absence of volitional acts by the subscribers, the computer and telephone line equipment leased by access providers does nothing. In fact, the messages at issue in the case currently before this Court were treated similarly -- if not identically -- by thousands of local servers nationwide and worldwide. The subscriber who posted the message kicked off a sequence of automatic electronic reactions over which the many computer servers that participated in the transmission of the message could exercise no control. This inability to act or exert control over the content of electronic communication makes access providers the most recent addition in a long history of communications conduits that are not liable for facilitating the communications of others. _________________________________________________________________ Legal Argument In order to be liable pursuant to copyright law or state law governing trade secrets, an access provider must either act unlawfully or know about the allegedly infringing activity. Given the passive nature of the provision of access to the Internet, and the inability of any provider to monitor, screen, or control the voluminous communications sent by its subscribers, IAPs will seldom take the requisite action or have the requisite knowledge to establish a statutory violation. 1. As passive carriers, Internet access providers cannot directly or vicariously violate copyright laws. IAPs furnish conductivity to the Internet -- they own automated systems that are used by individuals who wish to transmit information electronically. In this way, they are utilities for accessing content on the Internet that, like common carriers, have little control, if any, over the activities of subscribers or the content of messages. Access providers furnish and maintain the hardware and software necessary for individuals to connect to the Internet, and their services are available to anyone with the proper equipment. These elements combine to prevent access providers from taking the actions necessary to create copyright liability. 1. Internet access providers are not directly or vicariously liable for infringing content posted by individual users of interactive computer services. Liability for copyright infringement by an IAP requires a finding that the access provider infringed one of the statutory rights reserved for copyright owners.(Footnote) Access providers, such as DGS in this case, are incapable of infringing these rights because they functionally are merely conduits of information, much like the postal and telephone services. All messages sent electronically are posted in a similar fashion: an individual creates a message and then takes the necessary steps to forward that message electronically to another individual, a bulletin board, or a newsgroup. Other subscribers direct their interactive services to retrieve information from a particular newsgroup or bulletin board. In the case of a newsgroup posting, the message travels from the originator's computer to a local server and then to numerous local servers nationwide or even worldwide so that it may be accessed by users of the newsgroup. In this way, the equipment owned by each IAP serves as temporary host to all messages posted to newsgroups to which it provides access, regardless of where the message originated. In all likelihood, computers owned by CIX members worldwide served as temporary hosts to the postings at issue in this case. RTC alleges that DGS, and similarly situated IAPs, "caused its computers to make copies of the works at issue."(Footnote) IAPs, however, do not control the creation, contents, or destination of the postings. They do not post material nor do they engage in any volitional act of copying, distributing, or displaying material. Rather, the access provider's customers transport themselves to the content -- they access the Internet through IAPs and navigate, through their own "browser" software or one provided by the IAP, to the discussion group in which they wish to participate.(Footnote) The IAP's equipment is used by subscribers merely as a conduit for communications. Technologically, this is the only way to achieve the user's goal of sending a message to a particular newsgroup. No case has ever held that an access provider whose equipment merely connects the subscriber to the Internet is liable for the subscriber's postings. Indeed, there is no legal precedent for holding any passive conduit facility liable in copyright. While personal computers and the computer networks that connect them to the Internet emerged relatively recently in our history, telegraph companies, mail houses, and telephone companies have long provided similar services to the public. The plaintiff here has not identified a single instance in our nation's history where a conduit facility has been held liable in copyright.(Footnote) To the contrary, in a copyright suit also prosecuted by RTC against an IAP, the court recently found that the plaintiff had failed to establish the volitional or causal elements necessary to hold an IAP directly liable for copyright infringement. In Religious Technology Center et al. v. Netcom On-Line Communication Services, Inc., et al., the court concluded that "the mere fact that Netcom's system incidentally makes temporary copies of plaintiffs' works does not mean Netcom has caused the copying."(Footnote) Distinguishing between, on the one hand, holding someone who has caused the copying of works or their distribution strictly liable and, on the other hand, RTC's far broader argument, the court concluded: "Although copyright is a strict liability statute, there should still be some element of volition or causation which is lacking where a defendant's system is merely used to create a copy by a third party."(Footnote) Vicarious infringement, another form of copyright liability, turns on the defendant's relationship to the direct infringer. It arises when a defendant's "right and the ability to supervise" the infringing activity "coalesce with an obvious and direct financial interest in the exploitation of copyrighted materials."(Footnote) As described herein, access providers do not, and cannot, supervise the content of all messages prior to posting. In addition, most access providers charge a flat monthly fee for use of their services, charging the same fee to customers regardless of whether the customer sends 2 messages each month or 200 messages, and regardless of the content of those messages. Indeed, they receive the same monthly fee absent any postings at all.(Footnote) In short, by the passive nature of their role, IAPs lack the participation or ability to control necessary for direct or vicarious liability. The long-standing practice of excluding passive intermediaries from liability underscores the appropriate liability for passive Internet access providers. The historical treatment of "passive carriers by" Congress and the Supreme Court illustrates the correctness of this conclusion. Section 111(a)(3) of the 1976 Copyright Act provides that the secondary transmission of a work is not an infringement of copyright if "[t]he secondary transmission is made by any carrier who has no direct or indirect control over the content or selection of the primary transmission or over the particular recipients of the secondary transmission, and whose activities with respect to the secondary transmission consist solely of providing wires, cables, or other communications channels for the use of others." The genesis of this provision, and accompanying language in section 111, is the copyright dispute in the 1960s and 1970s between broadcast television programmers and cable television operators. Cable TV was the nascent technology in the decade preceding passage of the 1976 Copyright Act, much like Internet communication networks have been an important nascent technology during the past decade. The broadcasters challenged in two cases that reached the U.S. Supreme Court the practice by operators of cable TV systems of retransmitting copyrighted material from television broadcasts. In both pre-1976 cases, the Supreme Court held that cable TV retransmissions did not infringe the copyrights of broadcast TV programmers.(Footnote) In revisiting the issue of passive carriers in the context of cable retransmission, Congress chose to subject retransmissions to a compulsory license, and exempted the passive intermediaries between broadcasters and the cable TV systems.(Footnote) As the Seventh Circuit explained: "The cable system selects the signals it wants to retransmit, pays the copyright owners for the right to retransmit their programs, and pays the intermediate carrier a fee for getting the signal from the broadcast station to the cable system. The intermediate carrier pays the copyright owners nothing, provided it really is passive in relation to what it transmits, like a telephone company."(Footnote) As the Second Circuit further explained, the genesis of the provision was the concern in 1965 that intermediate carriers might be held to infringe the broadcasters' copyrights for merely providing the communications facilities for the retransmission of signals by the cable TV system: "[T]he late Professor Derenberg wrote the House Judiciary Committee, fearing that a CATV system that leased AT&T equipment to distribute [broadcast TV] signals directly to the public would render AT&T liable for infringement. The [carrier] exemption was reinstated."(Footnote) Like telephone companies, IAPs such as DGS are passive in relation to what they transmit. These service providers have never been held liable for such passive transmissions, and the provisions of section 111(a)(3) confirmed the exemption from liability that should attach to truly passive carriers.(Footnote) Here, individuals make a primary transmission from personal computers and they use the access provider's equipment for secondary transmission of that information. The IAP has no direct or indirect control over the content of the primary transmission because it merely "retransmit[s] exactly what and all of what it receives."(Footnote) Likewise, access providers have no control over the particular recipients of the transmission. The individual user, not the IAP, directs the transmission; other individual users decide whether to receive or download the transmission. Any individual with access to a particular newsgroup via any connection to the Internet could obtain a message posted by any other individual. Internet access providers nationwide, including DGS, should be no more liable than passive carriers with respect to communications in which they provide "only [their] transmission services" and "transmit[ ] nothing of [their] own creation."(Footnote) In the tradition of the courts in Fortnightly and Sony, this Court should find that DGS, and similarly situated entities with passive roles in communications on the Internet, cannot be subject to liability for copyright infringement resulting from such transmissions. Internet access providers lack the knowledge necessary to be contributorily liable for copyright infringement or liable pursuant to state trade secrets law. Liability for contributory infringement under the Copyright Act rests on the defendant's knowledge of the infringing activity and substantial participation in the infringing conduct.(Footnote) These elements will rarely be present in matters involving IAPs nor are they present here. Knowledge must be in advance of the infringement and must be actual to comport with judicial precedent. The Supreme Court in Sony Corp. declined to find Sony liable for copyright infringement as the manufacturer of video recording devices based on Sony's "constructive knowledge of the fact that its customers may use [its] equipment to make unauthorized copies of copyrighted materials."(Footnote) This Court should similarly decline to hold an access provider liable for furnishing a conduit that subscribers may use to transmit unauthorized copies of copyrighted material.(Footnote) The only "knowledge" that may become available to an IAP comes after the alleged infringement occurred and amounts only to the knowledge that a third party and a subscriber are involved in a dispute regarding the use of allegedly copyrighted materials. Even after notice, IAPs are in a poor position to determine whether the materials were copyrightable and were in fact copyrighted, the copyright holder's identity, or whether the postings were a fair use -- that is, the types of determinations that this Court is being asked to make. Moreover, like telephone systems that route millions of messages a day, the position of IAPs is compounded by the sheer numbers of messages passing through their systems. For example, half a billion messages pass through CIX member facilities daily, which if only 0.1% were the subject of copyright infringement allegations would amount to 500,000 complaints daily. Under the circumstances, the knowledge of the existence of a dispute cannot rise to the level necessary for copyright liability.(Footnote) Knowledge also is essential for a finding of trade secret misappropriation under Virginia law.(Footnote) Misappropriation can occur in one of several ways, none of which are applicable to access providers such as DGS: (1) acquisition of the "secret" when the access provider knows or has reason to know that the trade secret was improperly acquired; or (2) disclosure of the "secret" if the access provider used improper means to obtain the "secret" or at the time of disclosure knew or had reason to know that information was secret.(Footnote) In furnishing its subscribers with the wires and conduits to connect to the Internet, IAPs lack knowledge about the content of the communications, let alone the requisite knowledge that the information was secret. Other bodies of law recognize this absence of knowledge by passive conduits and define liability in a manner that excludes them. For example, the "conduit liability" rule in defamation cases distinguishes between those who can readily determine and control whether a communication is defamatory before they transmit it, such as book and newspaper publishers, and those who "only deliver[] or transmit[] defamatory matter published by a third person."(Footnote) In Auvil v. CBS,(Footnote) the court held that a CBS network affiliate was not liable for publishing defamatory statements because it served as a mere conduit of the network's "60 Minutes" television program when it merely retransmitted the program, exercised no editorial control over it, and did not know of its content until it was broadcast. Likewise, a century of federal obscenity law distinguishes between those who deposit or receive proscribed shipments and those who merely deliver the shipment. The service provider is not liable because it lacks knowledge about the contents of the shipment or communication. Thus, federal law for over a century has punished the person who "knowingly uses the mails" to transport proscribed materials, not the postal worker or postal service. See 18 U.S.C. § 1461. Similarly, federal law punishes the person who "knowingly uses any express company or other carrier" to transport proscribed materials, not the telephone company or the UPS or Federal Express pilot or truck driver. See id. § 1462.(Footnote) In short, the plaintiff in this case is seeking not only an unwarranted extension of copyright and trade secret law, it is seeking to jettison this nation's long-standing and consistent rejection of the imposition of liability upon those who serve merely as passive conduits. The impact on the Internet of a ruling adverse to DGS and other Internet Access providers. Should this Court, for the first time, hold an Internet access provider liable in copyright and state trade secret law merely for furnishing its subscribers the wires and conduits to the Internet, the repercussions would be widespread and disastrous, affecting not only telecommunications giants, small businesses, and CIX members, but also colleges and libraries and, ultimately, the tens of millions of Internet users. It is well established that it is a practical and technical impossibility for IAPs to monitor all postings. CIX members transport nearly half a billion messages daily, and screening each of those messages would quickly create a backlog of weeks, months, and possibly years. Moreover, no technology exists that could screen for violations of copyright law. In fact, even an individual review of every message posted would not have uncovered the alleged infringement presently before this Court. Therefore, to hold access providers directly or vicariously liable would apply a standard that exposes an entire industry to vast liability and offers no mechanism for protection. It is tantamount to imposing liability on the telephone or courier industry, or even photocopier or VCR manufacturers, for alleged abuses by their customers. Such a ruling just as theses industries were getting underway would have stopped them in their tracks and deprived our nation of the benefits they offer. Even a temporary cessation of services can be sufficient to cripple a domestic industry in today's global marketplace. Unfortunately, RTC's assertion that this decision is limited, that a finding of liability would not require that access providers "monitor the posting of messages, make legal determinations, or do anything whatsoever"(Footnote) to impair the industry and the Internet, is untrue. The ubiquitous nature of postings makes all servers targets for liability, regardless of whether their subscribers posted the unlawful material. Pursuant to the theory advanced in this case, each and every server that offered access to the newsgroup to which the DGS subscriber posted his message is equally liable as a direct infringer of copyright. This extreme result demonstrates that there simply is no functional constraint on the plaintiff's theory of liability. Finally, IAPs face an unique difficulty in making twelfth-hour legal judgment calls as to whether postings violate copyright. An access provider cannot be expected to remove a posting simply because it receives a phone call announcing that the posting infringes copyright. No software exists to determine whether a particular communication violates the copyright laws. No programmer could encode instructions that could determine whether a particular phrase or picture infringes copyright, or whether a use was a fair use under copyright law and judicial precedent. It would be equally impossible economically and in terms of response time for each IAP to hire an army of lawyers to ascertain the viability of claims of copyright infringement as they arise. Finding copyright liability based on an access provider's refusal to remove postings immediately after receiving a phone call alleging copyright infringement places access providers in a legal Catch-22. If the IAP removes postings at the first suggestion of copyright infringement, users could use the threat of copyright infringement as a tool to get rid of any information they found offensive, undesirable, or contrary to their views. If access providers err on the side of the First Amendment after receiving notice from a user that a posting infringes copyright, it will likely face a lawsuit for damages brought by the copyright owner. Moreover, even an access provider that chose to remove all potentially infringing postings could not avoid liability under RTC's liability standard. The interconnections between servers means that no IAP could guarantee that a removed posting would not come back to it from another server or another subscriber. In fact, a posting would have to be removed within minutes of arriving at a server; otherwise, it has already traveled to thousands of other servers and circumvented the globe. The only way to ensure that a removed posting does not return to a particular server is to shut the server down entirely, prohibiting communication of any kind. The Internet was conceived and has developed as an alternative communication system. As with other types of illegal communication, those responsible for unlawful acts on the Internet should be liable for the contents of that communication. Otherwise, many IAPs would understandably leave the industry rather than face crippling liability to which there is no legal or technological defense. The remaining industry participants, as well as all information consumers, would face substantially higher costs, requiring innocent communicators to pay for the misdeeds of others and limiting access to the global information system to only the most wealthy -- a result worthy of totalitarian regimes, not a democracy.(Footnote) The correct and appropriate ruling here is to reject RTC's invitation to hold DGS and similarly situated IAPs liable merely for furnishing their subscribers with the wires and conduits to the Internet. _________________________________________________________________ Conclusion For the foregoing reasons, this Court should grant DGS's motion for summary judgment. Respectfully submitted, __________________________ Ronald L. Plesser Emilio W. Cividanes Julie A. Garcia Carla Pennington-Cross (Virginia Bar No. 34600) PIPER & MARBURY L.L.P. 8300 Boone Boulevard Suite 500 Vienna, VA 22182 202/861-3900 _________________________________________________________________ CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Praecipe, Motion for Leave to File Amicus Curiae Brief, and Memorandum of Law of the Commercial Internet eXchange Association in Support of the Motion for Leave to File Amicus Curiae Brief and of the Motion For Summary Judgment of Defendant Digital Gateway Systems, have been served as indicated, this 29th day of November, 1995, upon the following: By First Class Mail Jay Ward Brown Ross, Dixon & Masback, L.L.P. 601 Pennsylvania Avenue, N.W. North Building Washington, D.C. 20004 Duane W. Krohnke 2200 Norwest Center 90 South Seventh Street Minneapolis, Minnesota 55402 Thomas B. Kelley 2500 Republic Plaza 370 Seventeenth Street Denver, Colorado 80202 Christopher Wolf Proskauer, Rose, Goetz & Mendelsohn, L.L.P. 1233 Twentieth Street, N.W. Washington, D.C. 20036 Bruce R. McHale Chamowitz & Chamowitz, P.A. 118 N. Alfred Street Alexandria, Virginia 22314 Helena K. Kobrin 7629 Fulton Avenue North Hollywood, California 91605 Earle C. Cooley Cooley, Manion, Moore & Jones, P.C. 21 Custom House Street Boston, Massachusetts 02110 By Hand Delivery and First Class Mail R. V. Lupo Willian Brinks Hofer Gilson & Lione 2000 K Street, N.W., Suite 200 Washington, D.C. 20006-1809 Michael A. Grow Vorys, Sater, Seymour & Pease 1828 L Street, N.W. Washington, D.C. 20036 ___________________________ Carla Pennington-Cross