Case Adds More Uncertainty To Web Copyright Laws

Originally Published in the National Law Journal (Vol. 22, No. 23) on January 31, 2000, at C9.

Republished as the "In Depth Feature" in the February 8, 2000, (Vol. 2, No. 6) edition of E-Commerce Law Weekly, at 160.

Utah court finds contributory infringement for encouraging use of links to infringing sites.

On Dec. 6, 1999, U.S. District Judge Tena Campbell issued a preliminary injunction in Salt Lake City against the Utah Lighthouse Ministry. It prohibited Jerald and Sandra Tanner from posting e-mail and other text on their Web site, including information about links to third-party Web sites containing pirated copies of a copyrighted handbook owned by the Church of Jesus Christ of Latter-Day Saints (LDS).1 Judge Campbell concluded that the Tanners were engaging in contributory copyright infringement by actively encouraging others to locate, browse and/or copy the copyrighted handbook.

This decision is yet another round in a series of legal battles being waged over IP on the Internet. It raises some serious concerns about the ability to freely use one of the most important features of the Internet: electronic links to other sites.

In July 1999, the Tanners posted on their Web site 17 pages of a guidebook for lay clergy, the Church Handbook of Instruction. The posted pages included information describing church discipline and the removal of names from LDS church membership rolls. The handbook is a closely guarded, privately printed, limited-distribution, unpublished book that is given only to LDS church officers. The Tanners allegedly received an electronic copy of the handbook from an anonymous source and indicated that for many years, they had received numerous requests for the information they posted from the handbook.

In October 1999, Intellectual Reserve Inc. (IRI), a corporation that manages the LDS Church's intellectual property, sued the Tanners, who are longtime critics of the church, alleging that the 17 pages of the handbook posted on the Web site violated the church's federal copyright in the handbook.

IRI filed a motion for a temporary restraining order prohibiting the Tanners from posting any portion of the handbook on their Web site. Judge Campbell granted the TRO, ordering the Tanners to remove the pages from their Web site, post a public acknowledgement of the LDS church's copyright on the handbook, admit their violation of the copyright in the handbook and request that all copies of the handbook previously downloaded be destroyed.

Without admitting fault or liability, the Tanners initially consented to, and complied with, the TRO by removing the handbook from their Web site and posting the demand letter sent by IRI to satisfy the publication requirement. The demand letter, legal papers and other news stories related to the case can be viewed on the Tanners' Web site. (www.utlm.org/underthecoveroflight_news.htm)

In November 1999, however, the Tanners posted e-mail and other text on their Web site that included a...