1 Tim Ouellette, Software pirates treasure Win 95, ComputerWorld, Sept. 25, 1995 at 28,A.

2 Fred Langa, A Sneak Peek At Windows 96/Nashville?, Windows Magazine, Mar. 1, 1996, at 11.

3 Stephen Lynch, Business, The Orange County Register, Jan. 8, 1996, at D24; Pirated version of Windows 96 posted online, San Antonio Express-News, Jan 7, 1996.

4 Usenet posts claiming to be Nashville or Windows96 were available for downloading on at least two Usenet servers, news.gil.net and news.bway.net as of April 15, 1996. On the same day posts claiming to be Microsoft Office and Access for Windows95, Adobe Premier, Illustrator and Photoshop, Lotus Ami Pro, and Turbo Tax were among some of the other software packages available for downloading.

5 As of 6/12/95 monthly postings to alt.binaries.warez.ibm-pc totaled 1364.4 MB. Approximately 460 MB per day were posted to all Usenet newsgroups combinded. Projected over a 30 day month Postings just to the alt.binaries.warez.ibm-pc would account for close to 9.5% of all Usenet traffic. Brian Reid's arbitron results available on line at http://www.tlsoft.ft.com/arbitron.

6 Email from: Brian Reid on file with the author until April 30, 1997.

7 Michael Meyer and Anne Underwood, Crimes of the 'Net', Newsweek, Nov. 14, 1994, at 47.

8 From the definition of USENET in THE FREE ON-LINE DICTIONARY OF COMPUTING available online at http://wagner.princeton.edu/foldoc.

9 Id. It is not strictly true to say a single protocol is used for all Usenet tranfers. However the protocols used are compatible with each other.

10 Id.

11 Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F. Supp. 1361, 1367-1368(N.D. Cal. 1995).

12 OpNet Daily Usenet Statistics available online at http://www.op.net/usenet-stats.html.

13 Reid, supra note 5.

14 See generally Usenet newsgroup news.lists

15 907 F. Supp. At 1368.

16 Edward Vielmetti, What is Usenet? A Second Opinion available online at http://www.cis.ohio-state.edu/hypertext/faq/usenet/usenet/what-is/part2/faq.html

17 17 U.S.C. sec. 101 Et seq.

18 17 U.S.C. sec. 106(1).

19 17 U.S.C. sec. 106(2).

20 17 U.S.C. sec. 106(3).

21 17 U.S.C. sec. 106(4).

22 17 U.S.C. sec. 106(5).

23 Supra notes 18-22.

24 CARY H. SHERMAN ET AL., COMPUTER SOFTWARE PROTECTION LAW §203.3, AT 203-11 (1991).

25 17 U.S.C. sec. 502.

26 17 U.S.C. sec. 503.

27 17 U.S.C. sec. 504.

28 17 U.S.C. sec. 505.

29 Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).

30 The validity of these assumptions depend upon the specific facts of a case. For the purposes of this discussion I assume the uploading of a computer software program from a major software company to a usenet newsgroup like alt.binaries.warez.imb-pc. Although lack of a valid copyright, and issues of how substantially similar a copy of software that has been uuencoded is to the original are valid defenses for a defendant to raise, they are beyond the scope of this document. That a copy is made when an upload or download takes place is well established under current case law. This is not to suggest that because a copy has been made there is necessarily an infringement. See generally Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights (1995) at 65-65.

31 Sony Corp. Of Am. V. Universal City Studios, Inc., 464 U.S. 417(1984); Gershwin Publishing Corp. V. Columbia Artists Management, Inc., 443 F.2d 1159 (2nd Cir. 1971).

32 Shapiro, Bernstein & Co. V. H.L. Green Co., c (2nd Cir. 1963).

33 Playboy Enterprises, Inc. v. Frena, 839 F.Supp. 1552 (M.D. Fla. 1993).

34 Commentators have been critical of the opinion because of this fact. It has been suggested that the court may have treated Frena as having actual knowledge that his BBS had infringing photographs on its hard drive. 907 F. Supp. at 1371 & n. 16; Bruce P. Keller, Conducting the Intellectual Property Audit in Cyberspace, 429 P.L.I. /PAT. 483, 485 (1996).; Andrea Sloan Pink, Copyright Infringement Post Isoquantic Shift: Should Bulletin Board Services Be Liable?, 43 UCLA L. Rev. 587, 601 (1995).

35 Sega Enterprises Ltd. v. Maphia 857 F. Supp. 679 (N.D. Cal. 1994).

36 Supra note 11.

37 In many ways the court seems to view Usenet as merely a conduit for passing news posts. Routinely the court makes comments about the tempory nature of the copies that are generated by Usenet posts. One is left to wonder whether the defendants in Playboy or Sega would have faired any better if the uploads to their BBSes were replaced ever 11 days.

38 NIC description of alt.religion.scietology available online at http://sunsite.unc.edu/usenet-i/search.html;See generally Usenet newsgroup alt.religion.scientology.

39 See generally http://www.cybercom.net/~rnewman/scientology/home.html.

40 NIC description of alt.binaries.warez.ibm-pc available online at http://sunsite.unc.edu/usenet-i/search.html;See generally Usenet newsgroup alt.binaries.warez.ibm-pc.

41 Reid, supra note 6.

42 It is interesting to note that the RTC court doesn't seem to consider that many times it will be difficult if not impossible to enforce a judgment or even bring suit against the individual uploader. Adam P. Segal, Dissemination of Digitized Music on the Internet: a Challenge to the Copyright Act, 12 Santa Clara Computer & High Tech. L.J. 97 (1996).

43 An Anonymous remailer allow an internet user to send untraceable email and messages to Usenet groups. Anonymous remailers FAQ available online at http://spunky.paranoia.com/drugs/kef/remailer-faq.html

44 The court does note that initial installation and maintenance are not automated functions of the computer host but require human intervention.

45 PAUL GOLDSTEIN ET AL, COPYRIGHT § 6.1 at 6:6, (2nd ed. 1996).

46 443 F.2d at 1162; Id.

47 Sega suggests, at least where there is actual knowledge that copyright infringement will occur, that the mere fact that a defendant makes a BBS available to third party users there is contributory liability. Sony, supra note 41, suggest that where there is a substantial legitimate non-infringing use, it is unlikely that contributory infringement will be found. An interesting question for courts to consider is whether to treat the Usenet as a whole or apply the substantial legitimate test to the individual newsgroups.

48 443 F.2d at 307; RCA/Ariola Int'l, Inc. v. Thomas & Grayson Co. 845 F.2d 773, 781 (8th Cir. 1988).

49 Goldstein, supra note 45 § 6.3.1.1 at 6:24.

50 M. David Dobbins, Computer Bulletin Board Operator Liability for Users' Infringing Acts, 94 Mich. L. Rev. 217 (1995)