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[205] See discussion of the scope ofthe exclusive rights supra at pp. 34-64. For instance,activities such as loading a work into a computer, scanning aprinted work into a digital file, uploading or downloading a workbetween a user's computer and a BBS or other server, andtransmitting a work from one computer to another may beinfringements (in those cases, of the reproduction right). See,e.g., MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d511 (9th Cir. 1993) (the turning on of the computer, thereby causingthe operating system to be copied into RAM, constituted aninfringing reproduction of the copyrighted software); AdvancedComputer Services v. MAI Systems Corp., 845 F. Supp. 356 (E.D.Va. 1994) (loading software into computer's random access memoryconstituted infringing reproduction); see also 2 Nimmer onCopyright [[section]] 8.08 at 8-103 (1993) ("The input of a workinto a computer results in the making of a copy, and hence . . .such unauthorized input infringes the copyright owner's reproductionright.").
[250] Sega, supra note 119, at *7. Aclass action against another BBS operator was recently filed whichseems to allege both direct and contributory infringement. SeeFrank Music Corp. v. Compuserve Inc., Civil Action No. 93 Civ.8153 (JFK) (S.D.N.Y.) (complaint filed Nov. 29, 1993). TheComplaint alleges that defendant, by providing access to its BBS bysubscribers, engaged in: (1) "permitting, facilitating andparticipating in the recording of performances of the [Plaintiffs'works] into, and storing such recordings in, Compuserve's computerdatabase by permitting and enabling its paying subscribers to uploadsuch performances thereto"; (2) "maintaining a storage ofunauthorized recordings of [the Plaintiffs' works] (uploaded by itssubscribers) in and as part of Compuserve's computer database"; and(3) "permitting, facilitating and participating in the recording(i.e. re-recording) of the performances of [the Plaintiffs' works](theretofore stored in its computer database) by permitting andenabling its paying subscribers to download such recordedperformances therefrom." Complaint at 6-7. In addition, thePlaintiffs allege that Compuserve had "control over the nature andcontent of materials stored in its Bulletin Board and downloadedtherefrom"; that Compuserve "had actual knowledge of, or in theexercise of reasonable diligence could have determined, the natureand content of materials stored in its Bulletin Board and downloadedtherefrom"; and that Compuserve "had actual notice, or in theexercise of reasonable diligence could have determined, thatrecordings of [the Plaintiffs' works] were uploaded (recorded) to,stored in, and downloaded (re-recorded) from its computer database."See Complaint at 7.
In California, a U.S. District Court has entered a preliminaryinjunction against the owner of a computer bulletin board systembased upon claims of copyright and trademark infringement and unfaircompetition. In Sega Enters. Ltd. v. MAPHIA, supranote 119, Sega demonstrated that the bulletin board system knowinglysolicited the uploading and downloading of unauthorized copies ofSega's video games, and that whenever such a copy is played, Sega'strademark appears on the screen. Further, Sega's trademarkappeared, with the BBS operator's knowledge, on file descriptors onthe bulletin board. With regard to the trademark and unfaircompetition claims, the court concluded that there is support forthe conclusion that the transferred games are counterfeit under theLanham Act, and that confusion, if not on the part of the bulletinboard users, is inevitable on the part of third parties who may seethe copied games after they enter the stream of commerce.
[337] A "header" is a section of a digitalwork where information, data, codes and instructions may beembedded. Such information may actually be embedded anywhere in thework, but for ease of reference, this Report refers to suchinformation as embedded in a header. Terms such as "label" and"wrapper" are also used to refer to what this Report refers to as a"header." 2ff7e9595c
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