Sega Enterprises Ltd. v. Maphia

ORDER GRANTING SUMMARY ADJUDICATION OF LIABILITY AND A PERMANENT INJUNCTION WITH RESPECT TO DEFENDANT SHERMAN

Plaintiffs Sega Enterprises, Ltd. and Sega of America, Inc., (collectively “Sega”) fried this action for copyright infringement under 17 U.S.C. §§ 101 et seq., federal trademark infringement under 15 U.S.C. §§ 1051 et seq., federal unfair competition for false designation of origin under 15 U.S.C. § 1125(a), California trade name infringement under California Business and Professions Code §§ 14401 et seq. and California unfair competition under California Business and Professions Code §§ 14210, 17200-17203 against Defendant Chad Sherman and several other individuals operating on-line bulletin boards, and MAPHIA and other bulletin boards as businesses of unknown structure. 1

This Court has jurisdiction over the causes of action arising under federal law pursuant to 28 U.S.C. § 1338(a), and has jurisdiction over the state causes of action pursuant to 28 U.S.C. §§ 1338(b).

Venue is proper in the federal district court where certain Defendants reside and where the alleged acts of trademark and copyright infringement occurred. 28 U.S.C. §§ 1391(b) and (c). Venue in the instant suit is proper in the Northern District of California.

After careful consideration of the parties’ papers and the record as a whole, and good cause appearing, the Court GRANTS summary judgment regarding Sherman’s liability for copyright infringement, federal trademark infringement, federal unfair competition for false designation of origin, California trade name infringement and California unfair competition. The Court also GRANTS Sega’s request for a permanent injunction prohibiting further copying of SEGA games by way of the MAPHIA electronic bulletin board, or any bulletin board run by Sherman.

STATEMENT OF FACTS

1. Sega’s business

Sega 2 is a major manufacturer and distributor of computer video game systems and computer video game programs which are sold under the SEGA logo, its registered trademark. (Federal Registration No. 1,566,116, issued November 14, 1989). As part of its development process, Sega takes care to ensure the quality and reliability of the video game programs and products sold under SEGA trademarks.

*927 Sega also owns the copyright for the game programs that Sega develops, and has federal copyright registrations for several video games, including Jurassic Park and Sonic Spinball.

The Sega game system consists of two components, the base unit game console, and software stored on video game cartridges which are inserted into the base unit. The base unit contains a microcomputer which, when connected to a cartridge and a television, permits an individual to play a video game stored on the inserted cartridge. The cartridge format is not susceptible to breakdown or erasure. Defective Sega cartridges are replaced by Sega.

Sega’s game system is designed to permit the user only to play video game programs contained in Sega cartridges. The system does not permit the copying of video game programs. Sega does not authorize the copying or distribution of its video game programs on other storage media such, as floppy disks or hard disks.

Sega takes steps to keep its methods of developing video game programs, its works-in-progress, and the codes of its released products confidential, and the employees and contractors who work with Sega sign nondisclosure agreements regarding their work. Video game programs which are in development are referred to as “pre-release” programs. During the development period, prerelease software may be stored on cartridges, floppy disks or hard disks for internal use by Sega. Upon completion of the program, however, the program is distributed only on cartridges.

II. MAPHIA Bulletin Board

Sherman is the system operator for MAP-HIA, an electronic bulletin board. An electronic bulletin board (“BBS”) consists of electronic storage media, such as computer memories or hard disks, which are connected to telephone lines by modem devices, and are controlled by a computer. Users of BBSs can transfer information from their own computers to the storage media on the BBS by a process known as “uploading.” Users can also retrieve information from the BBS to their own computer memories by a process known as “downloading.” Video game programs, such as Sega’s video game programs, are among the kinds of information that can be transferred in these ways.

The software and computer hardware Sherman used to run MAPHIA is owned by him and located at his residence in San Francisco, California. The MAPHIA bulletin board is open to the public and has approximately 400 users who routinely download and upload files from and to the MAPHIA BBS. The users of this BBS are identified by a handle and a password. A handle is a pseudonym by which individuals are known to other users of the system. The password is not displayed to other users and is known only to the system operator and the authorized user.

The evidence shows that “Brujjo Digital” is the alias used by Sherman as the system operator of the MAPHIA BBS, and in communicating with others. For example, Sherman admitted that he was the system operator of the MAPHIA BBS, and the MAPHIA BBS indicates that Brujjo Digital is its operator.

III. Evidence collected from the seizure

This action was initiated after Sega allegedly received an anonymous tip that Sherman was an operating computer BBS which contained and distributed pirated and unauthorized versions of Sega’s video game software. Sega collected evidence of these activities by having a Sega employee gain access to the MAPHIA BBS under a pseudonym, using information supplied by an authorized user who was an informant.

Pursuant to the ex parte Temporary Restraining Order and Seizure Order issued by Judge Fern M. Smith of this Court on December 9,1993, a search of Sherman’s premises was conducted. Pursuant to the Order, Sherman’s computer and memory devices were seized, the memory was copied, and the computers and other seized hardware were returned to Sherman, with the Sega games deleted.

Data from the MAPHIA BBS indicates that it is linked to another BBS called PSYCHOSIS, whose system operator is called *928 Caffeine. This data also indicates that Sherman and the MAPHIA BBS are part of or linked to a network of BBSs, called PARSAC (also spelled “PARSEC” by Sherman), for business purposes. A newsletter displayed on the MAPHIA BBS refers to MAPHIA as the “WorldHeadquarters” for a group called “PARSEC” of which PSYCHOSIS is the “USHQ.” Sherman is the “acting world leader” of PARSAC. A message file located on Sherman’s computer, authored by Brujjo Digital, states:

NOTES WORTHY OF MENTION:

... You probably noticed that I am taking over the World Leader Position and that’s because I felt like I pulled alot of this together with ALOT ALOT of help from Caffeine ...

PARSEC VOICE MAIL BOXES:

I’m setting up a VMB system at my house for PARSEC ONLY! ... the kewl thing about it is that the VMB can page myself and Caffeine when an original game is ready for release or anything important comes up.

ADVERTISING CAMPAIGN:

As you know we have PARSEC TRADING CO. as our business that sells everything from Copiers to ... I’ll have some Advertisements ready by the time I install Caffeine’s REXX DOOR to handle Customer’s Orders online at the ¡MAPHIA! like the system Caffeine runs on Psychosis

NEW MEMBERS:

... we are selling ... Super Magic Drives ... but me and Caffeine will handle all the business side of that ...

At the time it was seized, the MAPHIA BBS contained unauthorized copies of 12 Sega games developed by Sega, ten Sega-licensed games, and six Sega pre-release or “beta” version games, developed in-house by Sega. The copies of Sega’s programs uploaded to and downloaded from the MAPHIA BBS are substantially similar to Sega’s video game programs as stored in the cartridges sold by Sega. Prior to the seizure, each of the Sega-developed and beta version games on the MAPHIA BBS was available for downloading by MAPHIA users who access the board through their own computers by modem telephone connections. Sega had U.S. copyright registration in at least two of the games found on the MAPHIA, BBS, namely Jurassic Park and Sonic Spinball.

Sega games are generally listed on the MAPHIA BBS in a file area entitled “<<< ¡MAPHIA! »> SEGA CONSOLES <<<.” The games are identified by a “file descriptor” which includes the title of the game, the manufacturer, and either the word “SEGA” or “Sega,” the same word that is in the SEGA registered trademark. Additionally, the SEGA trademark appears on the screen whenever a Sega game which has been downloaded from the MAPHIA BBS is subsequently played. Sherman acknowledged that the SEGA trademark is displayed when the downloaded games are played.

The directory of video game programs available on MAPHIA also contains numerous references to video game programs containing “patches” or “fixes.” These words refer to user-introduced changes to problems which may have been introduced in the copying process or which existed in beta version games.

Printouts of the data on Sherman’s BBS seized pursuant to this Court’s Order and online data captured from Sherman’s BBS show that the uploading and downloading of unauthorized copies of Sega’s copyrighted video games was known to Sherman. Sherman acknowledges that users of the MAP-HIA bulletin board were allowed to upload and download Sega games with the authorized password. A screen printout of user uploading and downloading statistics from his MAPHIA BBS shows that Sherman tracked, or at least had the ability to track, user uploads and downloads. Additionally, another message authored by Brujjo Digital and located on Sherman’s BBS states:

Please UPLOAD *ALL* the missing CONSOLE Files NOT HERE from the time I closed the ¡MAPHIA! Oct 17th until up to now!! Time to get some free credits *929 for someone if you get them all in here and get me caught up.

Sherman also sold video game copiers, referred to as “Super Magic Drives” (“copiers”), through the MAPHIA BBS in collaboration with the PSYCHOSIS BBS, collectively known as PARSAC. Sherman’s business plan as described by his alias “Brujjo Digital,” states:

As you know we have PARSEC TRADING CO. as our business that sells everything from Copiers to Modems to Hard Drives to Calling Cards (off the record, hehe), and even Pentium Chips now. So, the next step is a MEDIA BLITZ! ... I’ll have some Advertisements ready ...

Also, we are selling Super Wild Cards, Pro Fighter Q’s and Super Magic Drives for AKIRA and that part of PARSEC will be dedicated for him but me and CAFFEINE will handle all the business side of that and paying him the money and dealing with the customers, etc.

According to a data file found on Howard Silberg’s computer, Parsec Trading has the following policy:

As you know, if you read the policies of PARSEC TRADING, each customer receives free-downloads up to ten (10) megabytes. This is so you can use your back-up unit and enjoy it! After your ten megabytes has been used up, you can donate $35 per month for a month of free-downloads, $200 for a year of free-downloads, or $500 for unlimited free-downloads.

A copier is necessary to play games which have been downloaded from the BBSs. The Super Magic Drive copier consists of a , connector which plugs into the video game console, a receptacle which accepts video game cartridges, a main unit which contains a random access memory (RAM) to store games, and a floppy disk drive. A MAPHIA BBS user can download video programs through his or her computer onto a floppy disk and make copies with his or her computer or play those game programs through the adaptor drive. To play a downloaded game, the user places the floppy disk into the video-game copier. The user can choose the “run program” option and run the video game program from the floppy disk without a video game cartridge.

The adaptor drive also allows the user to copy the contents of a game cartridge onto a floppy disk. The user plugs the video game copier into the game console and places a video game cartridge into the receptacle of the video game copier. The user then turns on the adaptor drive. Through a menu screen, the user can select the “dump” option which will permit the user to copy the contents of the cartridge to a floppy disk.

Sega has attempted to obtain additional information from Sherman through deposition and discovery. Sherman was deposed on March 1, 1994, at which time he refused to answer substantive questions by invoking his Fifth Amendment privilege.

EVIDENTIARY OBJECTIONS

I. Sega’s Motion to Strike Peterson’s First Declaration

Sega moves to strike Peterson’s Declaration in Support of Opposition to Preliminary Injunction (“First Peterson Deck”) 3 arguing, among other things, that Peterson is not qualified as an expert regarding the subject matter of the declaration. Because Peterson’s expertise is limited to computers generally and computer law, 4 the Court will disregard any opinions expressed outside this field. LuMetta v. U.S. Robotics, 824 F.2d 768, 771 (9th Cir.1987) (exclusion of expert testimony is justified where foundational facts demonstrating relevance or qualification are not established.) Further, the Court *930 finds that because the only opinion expressed with respect to computers generally relates to alteration of files on another person’s computer which was seized by Sega, and because Sherman has not alleged similar alteration of files in Ms case, the Court finds tMs opinion irrelevant. The Court GRANTS Sega’s motion to strike Peterson’s First Declaration.

II. Sherman’s Objections to Sega’s Entry into MAPHIA

A. Unclean Hands

Sherman complains that Yang gained access to MAPHIA under a pseudonym, and argues that such access amounts to unclean hands wMch should prevent summary judgment. The Court disagrees.

Yang’s access to MAPHIA under the informant’s pseudonym was consistent with all users’ anonymous access. Thus, no misrepresentation occurred. Even characterized as misrepresentation, however, such actions do not provide a defense to copyright or trademark infringement. See, e.g., Reebok Int’l, Ltd. v. Jemmett, 6 U.S.P.Q.2d 1715, 1717, 1988 WL 106933 (S.D.Cal.1988) (no unclean hands where Reebok employee falsely represented name and occupation to get evidence of infringement).

B. Violation of 18 U.S.C. § 2701(a)

Sherman argues that Sega’s access to the MAPHIA BBS through use of a pseudonym constitutes a violation of the Stored Wire and Electrome Communications and Transactional Records Act, 18 U.S.C. § 2701(a). Sherman argues that, because a password in a security system is intended to protect the system itself as well as the user, the use of that password by someone other than the original user will compromise the security of the system and violate the intent of § 2701, which is to make systems “more secure.” Declaration of Richard Peterson in Support of Defendant Sherman’s Opposition to Summary Judgement (“Second Peterson Deck”) ¶ 14.

The Electrome Commumcations and Transactional Records Act makes it illegal to “intentionally access without authorization a facility through wMch an electrome communication service is provided.” 18 U.S.C. § 2701(a). The Act contains an exception for access wMch is authorized by a user of an electronic service with respect to a communication of or intended for that user. 18 U.S.C. § 2701(c)(2).

Becausé the MAPHIA BBS is open to the public, and normally accessed by use of an alias or pseudonym, it would appear that Sega’s employee’s pseudonymous access was authorized. Thus, Sega did not violate the statute.

To the extent Sherman argues that the password system is intended to protect the system, tMs argument is unpersuasive. There is no evidence that the intent of requiring passwords is to protect the system from use by those other than the original user, nor does Sherman cite any support for Ms argument that all BBSs such as MAPHIA are closed and passwords are not transferable under industry practice. Sherman has also not provided any evidence that users of the MAPHIA system were informed or understood that passwords were not to be used by authorized third parties. Because Sherman has not provided any evidence or authority to support Ms argument, it must fail.

Furthermore, the Sega employee’s access to or commumcation with the BBS was authorized directly or indirectly by a valid MAPHIA user. As such, it fits the exception carved out in Section 2701(c) and, therefore, no violation of 18 U.S.C. § 2701(a) took place.

C. Violation of 18 U.S.C. § 2702

Sherman also argues that Sega violated 18 U.S.C. § 2702 by accessing the private e-mail of MAPHIA users and publishing parts of the e-mail in the Declaration of Jane Quayle Keene. Section 2702 provides that:

(1) a person or entity providing an electromc commuMcation service to the public shall not knowingly divulge to another person or entity the contents of a commumeation while in electroMc storage by that service; and

(2) a person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity *931 the contents of any communication which is carried or maintained on that service.

On its face, the language of the statute does not apply to Sega, because Sega never provided an electronic communication service to the public; it never ran the MAPHIA BBS as a BBS. Additionally, the temporary restraining order did authorize the seizure of documents or correspondence in Sherman’s control that relate to the reproduction of the alleged trademarks or copyrighted works, such as the e-mail in question.

STANDARD FOR GRANTING SUMMARY JUDGMENT

Summary judgment is properly granted when no genuine and disputed' issues of material fact remain, and when, viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Eisenberg v. Insurance Co. of North. America, 815 F.2d 1285, 1288-89 (9th Cir.1987).

The moving party bears the burden of showing that there is no material factual dispute. Therefore, the Court must regard as true the opposing party’s evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Eisenberg, 815 F.2d at 1289. The Court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Intel Corp. v. Hartford Accident and Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991).

Material facts which would preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. The substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). If the party moving for summary judgment meets its initial burden of identifying for the Court the portions of materials on file which it believes demonstrate the absence of any genuine issue of material fact, the nonmoving party may not rely on mere allegations in the pleadings in order to preclude summary judgment. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Assn., 809 F.2d 626, 630 (9th Cir.1987).

DISCUSSION

I. Copyright Infringement

Sega contends that Sherman is liable for copyright infringement under direct, contributory, ánd vicarious liability theories. Sherman admits that users of the MAPHIA BBS were allowed to upload and download Sega games with the authorized password, but maintains that this copying fits under the fair use defense because it was nothing more that the use of the games at people’s homes, and that any copyright violation was de minimis.

A Direct Infringement

To establish a prima facie case of direct copyright infringement, Sega must prove (1) ownership of a valid copyright in the infringed wprk, and (2) “copying” by the defendant. See Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157, 1162 (9th Cir.1977); Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F.Supp. 1361, 1366-67 (N.D.Cal.1995).

A certificate of copyright registration establishes a presumption that the copyright is valid. 17 U.S.C. § 410(c). Sega- has submitted several certificates of copyright registration for its video games, including certificates for Jurassic Park and Sonic Spinball. These certificates establish a presumption that Sega owns a valid copyright in those video game programs. Apple Computer, Inc. v. Formula Int’l Inc., 725 F.2d 521, 523 (9th Cir.1984).

The Ninth Circuit has held that “copying,” for the purposes of copyright law, occurs when a computer program is transferred from a permanent storage device to a computer’s random access memory. MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir.1993), cert. dismissed, 510 U.S. 1033, 114 S.Ct. 671, 126 L.Ed.2d 640 *932 (1994). In this case, copies were made when the Sega game files were uploaded to or downloaded from Sherman’s BBS. Thus, copying by someone is established.

This does not end the inquiry, however, because it does not establish whether Sherman, as the BBS operator, is directly liable for the copying. In Netcom, the court found that the Internet provider was not directly liable for copyright infringement of a copyrighted work posted and distributed through its system. Netcom, 907 F.Supp. at 1368-70. The Netcom court held that “[a]lthough copyright is a strict liability statute, there should be some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party.” Id. at 1370. “Where the infringing subscriber is clearly directly liable for the same act, it does not make sense to adopt a rule that could lead to the liability of countless parties whose role in the infringement is nothing more that setting up and operating a system that is necessary for functioning of the Internet,” even where the Internet provider has knowledge of potential copyright infringement by its subscribers. Id. at 1372-73.

While Sherman’s actions in this case are more participatory than those of the defendants in Netcom, the Court finds Net-com persuasive. Sega has not shown that Sherman himself uploaded or downloaded the files, or directly caused such uploading or downloading to occur. The most Sega has shown is that Sherman operated his BBS, that he knew infringing activity was occurring, and that he solicited others to upload games. However, whether Sherman knew his BBS users were infringing on Sega’s copyright, or encouraged them to do so, has no bearing on whether Sherman directly caused the copying to occur. Id. at 1372. Furthermore, Sherman’s actions as a BBS operator and copier seller are more appropriately analyzed under contributory or vicarious liability theories. Therefore, because Sega has not shown that Sherman directly caused the copying, Sherman cannot be liable for direct infringement. 5

B. Contributory Infringement

Just because Sherman is not liable for direct infringement, however, does not mean that he is free from liability. Although the Copyright Act does not expressly impose liability on anyone other than direct infringers, courts have long recognized that in certain circumstances, liability for contributory infringement will be imposed. Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 261 (9th Cir.1996) (citing Sony Corp. v. Universal City Studios, 464 U.S. 417, 435, 104 S.Ct. 774, 785, 78 L.Ed.2d 574 (1984)). Contributory copyright infringement stems from the notion that one who directly contributes to another’s infringement should be held liable. Id. at 264. Such liability is. established where the defendant, “with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.” Id. (quoting Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2nd Cir.1971)); see also Religious Technology Ctr. v. Netcom OnLine Communication Serv., Inc., 907 F.Supp. 1361, 1372 (N.D.Cal.1995) (quoting Gershwin, 443 F.2d at 1162).

To impose liability on Sherman for contributory infringement, Sega must first establish that the users of Sherman’s MAP-HIA BBS directly infringed Sega’s copyright. Second, Sega must establish that (i) with knowledge of the users’ infringing activity, (ii) Sherman induced, caused, or materially contributed to their infringing activity.

' 1. Direct infringement by MAPHIA BBS users

As discussed above, Sega has established that copies were made when unauthorized *933 copies of Sega game files were downloaded from, or uploaded to, Sherman’s BBS by-Sherman’s BBS users. Therefore, Sega has established direct copyright infringement by Sherman’s BBS users.

¡8. Sherman’s knowledge of his users’ activities

The standard for the knowledge requirement is objective, and is satisfied where the defendant knows or has reason to know of the infringing activity. Casella v. Morris, 820 F.2d 362, 365 (11th Cir.1987) (quoting Gershwin, 443 F.2d at 1162.) Here, it is undisputed that Sherman had knowledge that his users were copying the games. Sherman admits that users were allowed to upload and download Sega games from his MAPHIA BBS. Moreover, evidence of a screen printout of user uploading and downloading statistics from the MAPHIA BBS shows that Sherman tracked, or at least had the ability to track, user uploads and downloads. ’Thus, Sega has established that Sherman knew of the infringing conduct by MAP-HIA BBS users.

S. Sherman’s participation in his users’ activities

The Ninth Circuit has recently stated that “providing the site and facilities for known infringing activity is sufficient to establish contributory liability,” at least in a swap meet context. Fonovisa, 76 F.3d at 264. In this ease, Sherman provided the BBS as a central depository site for the unauthorized copies of games, and allowed subsequent distribution of the games by user downloads. He provided the facilities for copying the games by providing, monitoring, and operating the BBS software, hardware, and phone lines necessary for the users to upload and download games.

However, even under an alternative and higher standard of “substantial participation,” Sherman is liable. Under this standard, Sherman is only liable if he knew of the users’ infringing actions, and yet substantially participated by inducing, causing or materially contributing to the users’ infringing conduct. Netcom, 907 F.Supp. at 1382. In this case, Sherman did more than provide the site and facilities for the known infringing conduct. He actively solicited users to upload unauthorized games, and provided a road map on his BBS for easy identification of Sega games available for downloading. Additionally, through the same MAPHIA BBS medium, he offered copiers for sale to facilitate playing the downloaded games. Another court has found that the sale of such copying devices constitutes contributory infringement. Nintendo of America, Inc. v. Computer and Entertainment, Inc., 1996 WL 511619, *4 (W.D.Wash.1996). Moreover, Sherman’s business, Parsec Trading, had a policy of providing limited free downloading of games and thereafter selling downloading privileges to customers who had purchased copiers. Thus, Sherman’s role in the copying, including providing facilities, direction, knowledge, encouragement, and seeking profit, amounts to a prima facie case of contributory copyright infringement.

Because the Court finds • that Sega has established a prima facie case of contributory copyright infringement liability, it need not address whether Sherman is also liable under the theory of vicarious liability.

C. Fair Use Defense

Sherman argues that the copying done by the MAPHIA BBS users was fair because there is no evidence that the users went beyond simply playing the games in their own homes, nor any evidence that the users further distributed the games.

Under the fair use defense, there is no infringement, even where a person violates one of the copyright holder’s -exclusive rights, if that person’s use is a fair one. 17 U.S.C. § 107. In determining whether a use is fair, the following four, non-exclusive factors are considered: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the copyrighted work used; and the effect of the use upon the potential market for the copyrighted work. Title 17 U.S.C. § 107; Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 576-80, 114 S.Ct. 1164, 1170-71, 127 L.Ed.2d 500 (1994). Because fair use is an affirmative defense, Sherman carries the burden of demonstrating it. Acuff-Rose, 510 U.S. at 589-91, 114 S.Ct. at 1177.

*934 In considering this defense, the Court will consider whether Sherman has shown that either his actions or the users’ actions constitute fair use. If the users’ actions constitute fair use, they will not be considered direct infringers. Then, Sherman cannot be contributorily liable because contributory infringement requires direct infringement by someone. Fonovisa, 76 F.3d at 264. If the users’ actions do not constitute fair use, Sherman may still avoid liability if his contributing actions qualify as fair use. Netcom, 907 F.Supp. at 1378.

1. Purpose and character of use

With respect to Sherman’s activities, the evidence shows that Sherman encouraged uploading and downloading of Sega’s games in order to induce sales of copiers. Such a use is clearly commercial. Sherman intended to profit directly from the content of the information made available on his BBS because his copier customers could use the game files to play the games rather than purchase Sega game cartridges. This distinguishes Sherman from the Internet provider in Netcom who did not gain anything from the content of the information available to subscribers. Id. at 1379 (fact that the Internet provider did not directly gain anything from the content of the information available to its subscribers on the Internet helps weigh this factor in its favor despite commercial character of Internet provider’s use). This factor weighs against a finding of fair use with respect to Sherman’s activities.

The BBS users were encouraged to download games from the BBS in order to avoid having to buy video game cartridges from Sega. Such a purpose weighs against the fair use defense. See American Geophysical Union v. Texaco Inc., 802 F.Supp. 1, 14-16 (S.D.N.Y.1992), aff'd 60 F.3d 913 (2nd Cir.1994), cert. dismissed— U.S.-, 116 S.Ct. 592, 133 L.Ed.2d 486 (1995) (no fair use where scientists photocopied publication to avoid cost of purchasing additional copies from publisher). Because the BBS users were able to avoid purchasing the Sega cartridges, their copying is distinguished from that in Lewis Galoob, where the users did have to purchase an authorized game cartridge. See Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F.2d 965, 970 (9th Cir.1992), cert. denied, 507 U.S. 985, 113 S.Ct. 1582, 123 L.Ed.2d 149 (1993) (fair use found where users necessarily had to purchase Nintendo’s game cartridges in order to use a device called the “Game Genie,” which altered features of Nintendo’s copyrighted games during home play.)

Furthermore, this case is distinguishable from Sega Enter. Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir.1992), where the court found reverse engineering to be a fair use, in part because the reverse engineering promoted a growth in creative expression. Id. at 1523. In contrast, in this case, there is no evidence of any actual reverse engineering or any intent on the part of the users to do so. Thus, the absence of evidence that the copying was creative weighs against a finding of fair use. Triad Systems Corp. v. Southeastern Express Co., 64 F.3d 1330, 1336 (9th Cir.1995), cert. denied —U.S.-, 116 S.Ct. 1015, 134 L.Ed.2d 96 (1996).

2. Nature of the copyrighted work

This factor provides that the closer the copyrighted work is to the core of intended copyright protection, the more difficult it is to establish the fair use defense. Acuff-Rose, 510 U.S. at 586-87, 114 S.Ct. at