Playboy Enterprises, Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993) (full-text).
Defendant Frena operated a subscription bulletin board service (BBS) that distributed pornographic images. Once logged on a subscriber could browse through different BBS directories to find images, and subscribers could also download high-quality copies of the images. Over 100 of the images that were available on the BBS were copies of photos taken from plaintiff's magazines. Frena claimed that the photos had been uploaded to the system without his knowledge, and claimed to have removed the infringing photographs as soon as he learned that they were copyrighted.
Trial Court Proceedings
The court found Frena liable for direct copyright infringement, even though he did not upload the copyrighted image onto the bulletin board and was unaware of the material being on the bulletin board until after served with the summons in the case. Despite Frena’s purported lack of knowledge regarding the copyright infringements occurring on his BBS, the court held that Frena had directly infringed Playboy’s copyrights in image taken from the magazine.
The court found, in part, that Frena infringed PEI's registered trademarks when it used PEI's "Playboy" and "Playmate" marks in unauthorized transmissions of PEI's photographs as part of its bulletin board system. The court also found Frena to have committed acts of unfair competition, in violation of Section 43(a) of the Lanham Act, both by obliterating PEI trademarks from photographs and by placing its own advertisement on PEI photographs. Such acts made it appear as if PEI authorized Frena's use of the images on the bulletin board system.
- Although the court responded that his knowledge was irrelevant because copyright liability has no requirement of scienter, in fact, other evidence in the case made clear that the operator did indeed know what was happening. When BBS subscribers uploaded the photographic images, someone — presumably the defendant BBS operator — removed their identifying Playboy labels and replaced them with the defendant’s own name and that of his BBS. See 839 F. Supp. at 1559.
- 15 U.S.C. §1125(a).