August 4, 1996 11:30 AM PDT
Netcom and Scientology settle
Netcom's protocol states that upon receiving a complaint Netcom "will temporarily remove or deny access to the challenged material, to protect the rights of all involved."
"If Netcom concludes that complainant has raised a legitimate claim, it will continue to deny access to the challenged material," the protocol continues.
Netcom, through a spokesman, refused to comment further on the settlement, which is sure to stir debate.
The case involves claims by the Church of Scientology that a former church official turned critic used a bulletin board service and Netcom to post material on the Internet that infringed its copyrights.
Specifically, Religious Technology Center and Bridge Publications hold copyrights in the unpublished and published works of L. Ron Hubbard, the late founder of the Church of Scientology.
Co-defendant Dennis Erlich is a former minister of Scientology who became a vocal critic, with a Usenet newsgroup as his pulpit. Erlich's posting were made through a BBS, which was connected to the Internet through Netcom.
The Church attempted to get Erlich to stop his postings. When that failed it turned to the BBS operator and Netcom, both of which declined to restrict Erlich's access.
In narrow terms, the church had charged Netcom with "maintain(ing) copies of (Erlich's) messages on its server for 11 days," not with distribution.
In a motion to have the case dismissed, Netcom had contended that as a conduit to the Internet, rather than a content provider, it could not be held liable for material posted by its subscribers.
U.S. District Judge Ronald Whyte in San Jose denied Netcom's motion and allowed the case to proceed to trial. "If plaintiffs can prove the knowledge element," Whyte wrote, "Netcom will be liable for contributory infringement since its failure to simply cancel (the user's) infringing message and thereby stop an infringing copy from being distributed worldwide constitutes substantial participation in ... public distribution of the message."
The judge also left the door open for Netcom to plead ignorance. "Given the context of a dispute between a former minister and a church he is criticizing, Netcom may be able to show that its lack of knowledge that (the user) was infringing was reasonable," Whyte wrote.
Proponents of a free and open Internet have argued that forcing access providers to monitor and delete potentially infringing material would cripple the network.