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 case which could not be ignored or passed by. He said that it required just such an answer as the one he had decided to send; and that he would have answered the emperor with more decision and heat, were it not for the danger incurred by the fathers and the Christians residing in that kingdom, and the danger to these islands, if the emperor were to be openly provoked and displeased to the extent of declaring war. Because of the above-mentioned reasons, and taking into consideration the service of the Lord, and the welfare of those people, and the growth of the new gospel so pleasing to the Lord and so earnestly desired by his Majesty, and notwithstanding his judgment and belief that the said answer should be sent just as read here, he desired to call together these grave and important persons and inform them of this affair, so that, having examined the said letter, they could give their opinion. If they approved of it, it would be sent; but should they, for any reasons or considerations, desire it to be otherwise, they should give signed statements of their opinions, with the reasons therefor, and this opinion, together with his letter, and a copy of the letters from Japon and the reply which they think suitable, will be sent to his Majesty for the protection of the governor in the future, as in this matter he would not do anything but what might be resolved upon, and decided to be most beneficial to the service of God and of the king our lord, and to the good name of the Spanish nation.

Then the licentiate Pedro de Rojas, lieutenant-governor, said that the substance of the reply to the king of Xapon's letter, as read, was very prudent and discreet, and that its warmth and spirit were proper


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 and lord at the earliest opportunity of the peace and friendship established, so that he may ratify it from there; and I trust in the Lord that everything will be done as desired by your Grandeur, whom I wish to serve and please as the friend of my king and our own. In order to do so, I should have been glad if I had some curious things from Castilla, to send as presents to your Grandeur; but I cannot do it now, and will send them later, when they come. Should your Grandeur wish that as friends we send each other men of rank and station so that our intercourse might be more friendly and informal—not that the religious who have gone are not among us here respected and highly esteemed as servants of God, and are not sufficiently high in station—but from now on a layman could be sent of higher rank than that of those who have gone heretofore. Should your Grandeur desire to send someone to visit the court of my king and see its splendor and the power and dominion of his Majesty, he will be sent on from here, and will be well received and highly favored by my king, because he is very fond of receiving and entertaining foreigners, and especially such as might come from your Grandeur, who would receive especial favor. Your Grandeur can advise me of your decision in regard to this as well as the other matters; and may the Lord keep you and enlighten you with His divine light.

Then the governor said that because of the duty which, as a Christian, he owed to the Lord, and because of his duty to the king as his servant and subject, and because of the strict account which he must render sooner or later, he thought this a very serious

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 in view of the arrogant words written by the emperor in his letter; but that, in his opinion, it would be well to follow the reserved and dignified style generally used among such personages, and to leave out some words, especially in that part referring to the falsity of the prophecies, where other arguments could be advanced. The master-of-camp and other captains present were of the same opinion. The decision of the question was, therefore, postponed until the next day, when an amended reply would be presented. This resolution was signed by the licentiate Pedro de Rojas, Diego Ronquillo, Juan Xuarez Gallinato, Gomez de Machuca, Pedro de Chaves, Don Juan Ronquillo, Diego de Castillo, Pedro de Arceo Cuevasruvias, Juan Esquerra, Hernando Muñoz de Poyatos, Don Francisco de Poça, Francisco de Mercado Andrade, Christoval de Azqueta, Juan de Alcega, Don Diego Jordano, Antonio Decanedo, Gaspar Perez.

Before me:

In the city of Manila, on the twenty-eighth day of April, one thousand five hundred and ninety-four, the master-of-camp and captains who attended the preceding council of war met a second time at the royal house by order of and in the presence of Don Luis Perez Dasmariñas, governor and captain-general, to decide concerning the reply to be sent to the letter of Cuambaco, the emperor of Xapon, as had been agreed upon the day before. It had then been decided to omit from the said reply some of the arguments, and to substitute others, briefer and less likely to provoke or annoy him, leaving in it only


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 which she though she might probably be glad again to accept, I gained my point, and Miss Herbey has several times been permitted to accompany us across the rocks, where the young girl's delight at her freedom has been a pleasure to behold.

Sometimes we fish along the shore, and then enjoy a luncheon in the grotto, while the basalt columns vibrate like harps to the breeze. This arid reef, little as it is, compared with the cramped limits of the Chancellor's deck is like some vast domain; soon there will be scarcely a stone which we are not familiar, scarcely a portion of its surface which we have not trodden, and I am sure that when the hour of departure arrives we shall leave it with regret.

In the course of conversation, Andre Letourneur one day happened to say that he believed the island of Staffa belonged to the Macdonald family, who let it for the small sum of £12 a year.

"I suppose then," said Miss Herbey, "that we should hardly get more than half-a-crown a year for our pet little island."

"I don't think you would get a penny for it, Miss Herbey; but are you thinking of taking a lease?" I said laughing.

"Not at present," she said; then added, with a half suppressed sigh, "and yet it is a place where I have seemed to know what it is to be really happy."

Andre murmured some expression of assent, and we all felt that there was something touching in the words of the orphaned, friendless girl who had found her long-lost sense of happiness on a lonely rock in the Atlantic.

6 to November 15.—For the first five days after the Chancellor had run aground, there was a dense black smoke continually rising from the hold; but it gradually diminished until the 6th of November, when we might consider that the fire was extinguished. Curtis, nevertheless, deemed it prudent to persevere in working the pumps, which he did until the entire hull of the ship, right up to the deck, had been completely inundated.


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 rest of them will not obey one man alone, and that no human power could control so much. Even were every one of them to render you obedience, it is not to be thought that either our king or his subjects would do it; but on the contrary, were it not that our divine and Christian laws prevent us from taking unjustly from any one that which does not belong to us, and if affairs were in accordance with power and strength, my king only would be the one obeyed and acknowledged as such ruler. In all other matters we put our trust not in human power, which does not and cannot extend beyond God's divine wishes, but in Him whom we acknowledge as our true Lord and God, as well as the God of everything created. Under His omnipotent care we feel safe; and this feeling of safety and trust is not imagined, but real and proved by wonderful and miraculous deeds and events. Having such men near you as father Fray Pedro and others, your Grandeur could gain information—if for no other reason, merely for curiosity, since your Grandeur is so desirous of learning about greatness; and once having learned the greatness of our omnipotent Lord, you will see how wise we are in putting our trust and confidence in Him, who is almighty. I have said all this not to displease your Grandeur, but in order that you may realize why we do not render obedience to other dominion, other power or other lord, than Jesus Christ, almighty and true God and Lord, and our most Christian king Don Phelipe. As regards the friendship that your Grandeur says we ought to maintain forever, we, on our side, will observe it; and I feel certain that your Grandeur will keep it on your part, since it is so declared in your royal letters. I will advise my king


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 of amity; and then, with some heat and no less truth, calls his attention to the uncertainty of the prophecy concerning his rule over the world, enlightening him by the way as to some matters of our holy faith. In conclusion, with reference to the acknowledgment of subjection which he had supposed us to make, the letter states that our trust was wholly in God and in our obedience to Him, while our allegiance to our most Christian king admitted of no other allegiance, and of no other subjection, dominion, or acknowledgment of vassalage. And finally, in order to appease him somewhat at the end of the letter, a complete confirmation of peace and amity is offered him; and he is told that the king will be notified, and that in this, and in sending someone hence, and receiving persons from there, and in other tokens of friendship, good treatment, and a good understanding, his subjects would find this peace and amity here and on the part of his Majesty. The answer was immediately read, and is as follows:

The letter addressed by your Grandeur to my father was received by me as the person left in charge of the government of this land at his death, which occurred on the way to Maluco. He was treacherously killed while sleeping one night, without apprehension or precaution, as one who did not dream of having enemies or traitors with him. The traitors were the Sangleys, whom he took with him to work his galley. Like the ineffably low, vile, and cowardly people that they are, they killed my father because he trusted them and set them loose for their own comfort. The news of this event reached me


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 far from the place of its occurrence, while I was awaiting him with the fleet and troops, that we might depart. Although after his death I endeavored to continue my journey, I was prevented because of several events and considerations. I came back here desirous of hearing news from your Grandeur, and of seeing your letter replying to those sent by my father through Father Fray Pedro. Although two vessels arrived here from Xapon, they could not give me the desired news. The arrival of Pedro Gonçalez has pleased me greatly, especially in view of the fact that I was unable to understand his delay, and of the rumor here that your Grandeur was going to send your armies, a report very different from the agreement made in your name with my father by your ambassador and servant Faranda, which was for firm peace and full amity. Through the letter brought by Pedro Gonçalez, I have learned that it is your royal desire that such relations be continued; and this has greatly pleased me, for it is to be hoped that as the kings are great, great will be the friendship, and greater still the fruits of it. Equally great is my desire that hereafter we treat each other in every way like friends, with less formality and more frankness than in your royal letters hitherto received; because to say that the sun at your royal birth promised you the whole world and its sovereignty, I believe can only be the saying of someone who wishes to please and flatter you with such a prophecy—which is in no wise possible or practicable, for many reasons. The first is that the very power which according to your Grandeur's statement is to give you that dominion is unable to do it, since the sun is, just like the sky, the earth and everything else created, the work of our


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 true God and therefore it can neither promise nor fulfil such a promise. The sun has no more life or power than what God gave it, and this does not go to the extent of taking or giving away kingdoms, which can only be done by God himself. It is to this great God and Lord that thanks are due for all our life and power; and it is He who has such power, and not the sun or anything else which, as already stated, is an object created by Him. From the abovestated truth it must be inferred that it was flattery and nothing practicable that those learned men said. In this prophecy they have shown themselves to be in the wrong; because, even if no other obstacles were to be encountered, it would be impossible to fulfil the prophecy when it is considered what a long time it would require to do so, and how short our life is, especially so when the greater part of it is past. After this obstacle a greater one arises, and that is that, even if so many and powerful kings as the world holds were to be subjugated, my king would suffice to overthrow all these prophecies. And because it is right that I do so, and in order that your Grandeur be not deceived by what is nothing else than the false flattery of ignorant people, I acquaint you with the fact that my king's power is such, and the kingdoms and countries under his royal and Christian rule are so many, that his power and greatness is beyond compare with that of many kings and lords, though they be most powerful, each by himself. His dominions here are but a corner, and my king's possessions cannot be judged by his dominion here. Now, returning to what I was saying, since our lord and king is so powerful as he is, and only one of the many kings of this world, it can be easily imagined that all the


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 Helena K. Kobrin, North Hollywood, CA, Andrew H. Wilson, Wilson, Ryan & Campilongo, San Francisco, CA, Thomas M. Small, Janet A. Kobrin, Small, Larkin & Kiddé, Los Angeles, CA, Elliot J. Abelson, Los Angeles, CA, for Plaintiffs.


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Rh


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 Randolf J. Rice, Pillsbury, Madison & Sutro, San Jose, CA, for Defendant Netcom On-Line Communication Services.

Harold J. MecElhinny, Carla Oakley, Morrison & Foerster, San Francisco, CA, for Defendant Dennis Erlich.

Daniel Leipold, Hagenbaugh & Murphy, Orange, CA, for Defendant Tom Klemesrud.

WHYTE, District Judge.

This case concerns an issue of first impression regarding intellectual property rights in cyberspace. Specifically, this order addresses whether the operator of a computer bulletin board service (“BBS”), and the large Internet access provider that allows that BBS to reach the Internet, should be liable for copyright infringement committed by a subscriber of the BBS.

Plaintiffs Religious Technology Center (“RTC”) and Bridge Publications, Inc. (“BPI”) hold copyrights in the unpublished and published works of L. Ron Hubbard, the late founder of the Church of Scientology (“the Church”). Defendant Dennis Erlich (“Erlich”) is a former minister of Scientology turned vocal critic of the Church, whose pulpit is now the Usenet newsgroup alt.religion.scientology (“a.r.s.”), an on-line forum for discussion and criticism of Scientology. Plaintiffs maintain that Erlich infringed their copyrights when he posted portions of their


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 The rapidity, however, with which the water, at every retreat of the tide, drained off to the level of the sea, was an indication that the leak must be of considerable magnitude; and such, on investigation, proved to be the case. One of the sailors, named Flaypole, dived one day at low water to examine the extent of the damage, and found that the hole was not much less than four feet square, and was situated thirty feet fore of the helm, and two feet above the rider of the keel; three planks had been stove in by a sharp point of rock, and it was only a wonder that the violence with which the heavily-laden vessel had been thrown ashore did not result in the smashing in of many parts beside.

As it would be a couple of days or more before the hold (would be in a condition for the bales of cotton to be removed for the carpenter to examine the damage from the interior of the ship, Curtis employed the interval in having the broken mizzen-mast repaired. Dowlas the carpenter, with considerable skill, contrived to mortise it into its former stump, and made the junction thoroughly secure by strong ironbelts and bolts. The shrouds, the stays and backstays, were then carefully refitted, some of the sails were changed, and the whole of the running rigging was renewed. Injury, to some extent, had been done to the poop and to the crew's lockers in the front; but time and labor were all that were wanted to make them good; and with such a will did everybody set to work that it was not long before all the cabins were again available for use.

On the 8th the unlading of the ship commenced. Pulleys and tackling were put over the hatches, and passengers and crew together proceeded to haul up the heavy bales which had been deluged so frequently by water that the cotton was all but spoiled. One by one the sodden bales were placed in the boat to be transported to the reef. After the first layer of cotton had been removed it became necessary to drain off part of the water that filled the hold. For this purpose the leak in the side had somehow or other to be stopped, and this was an operation which was cleverly accomplished by Dowlas and Flaypole, who contrived to dive at low tide and nail a sheet of copper over the entire hole. This, however, of itself would have been utterly inadequate to sustain the pressure that would arise from the action of the pumps; so Curtis ordered that a number of the bales should be piled


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 up inside against the broken planks. The scheme succeeded very well, and as the water got lower and lower in the hold the men were enabled to resume their task of unlading.

Curtis thinks it quite probable that the leaks may be mended from the interior. By far the best way of repairing the damage would be to careen the ship, and to shift the planking, but the appliances are wanting for such an undertaking; moreover, any bad weather which might occur while the ship was on her flank would only too certainly be fatal to her altogether. But the captain has very little doubt that by some device or other he shall manage to patch up the hole in such a way as will insure our reaching land in safety.

After two days' toil the water was entirely reduced, and without further difficulty the unlading was completed. All of us, including even Andre Letourneur, have been taking our turn at the pumps, for the work is so extremely fatiguing that the crew require some occasional respite; arms and back soon become strained and weary with the incessant swing of the handles, and I can well understand the dislike which sailors always express to the labor.

One thing there is which is much in our favor; the ship lies on a firm and solid bottom, and we have the satisfaction of knowing that we are not contending with a flood that encroaches faster than it can be resisted. Heaven grant that we may not be called to make like efforts, and to make them hopelessly, for a foundering ship!

15 to 20.—The examination of the hold has at last been made. Among the first things that were found was the case of picrate, perfectly intact, having neither been injured by the water, nor of course reached by the flames. Why it was not at once pitched into the sea I cannot say; but it was merely conveyed to the extremity of the island, and there it remains.

While they were below, Curtis and Dowlas made themselves acquainted with the full extent of the mischief that had been done by the conflagration. They found that the deck and the cross-beams that supported it had been much


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 less injured than they expected, and the thick, heavy planks had only been scorched very superficially. But the action of the fire on the flanks of the ship had been of a much more serious character; a long portion of the inside boarding had been burned away, and the very ribs of the vessel were considerably damaged; the oakum caulkings had all started away from the butt-ends and seams; so much so that it was little short of a miracle that the whole ship had not long since gaped completely open.

The captain and the carpenter returned to the deck with anxious faces. Curtis lost no time in assembling passengers and crew, and announcing to them the facts of the case.

"My friends," he said, "I am here to tell you that the Chancellor has sustained far greater injuries than we suspected, and that her hull is very seriously damaged. If we had been stranded anywhere else than on a barren reef, that may at any time be overwhelmed by a tempestuous sea, I should not have hesitated to take the ship to pieces, and construct a smaller vessel that might have carried us safely to land; but I dare not run the risk of remaining here. We are now 800 miles from the coast of Paramaribo, the nearest portion of Dutch Guiana, and in ten or twelve days, if the weather should be favorable, I believe we could reach the shore. What I now propose to do is to stop the leak by the best means we can command, and make at once for the nearest port."

As no better plan seemed to suggest itself, Curtis's proposal was unanimously accepted. Dowlas and his assistants immediately set to work to repair the charred frame-work of the ribs, and to stop the leak; they took care thoroughly to calk from the outside all the seams that were above low water mark; lower than that they were unable to work, and had to content themselves with such repairs as they could effect in the interior. But after all the pains there is no doubt the Chancellor is not fit for a long voyage, and would be condemned as unseaworthy at any port at which we might put in.

To-day the 20th, Curtis having done all that human power could do to repair his ship, determined to put her to sea.

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 the little natural basin into which she had been driven. The basin was enclosed on either hand by rocks that remained uncovered even at high water, but was sufficiently wide to allow the vessel to turn quite round at its broadest part, and by means of hawsers fastened on the reef to be brought with her bows towards the south; while, to prevent her being carried back on to the reef, she has been anchored fore and aft.

To all appearance, then, it seemed as though it would be an easy matter to put the Chancellor to sea; if the wind were favorable the sails would be hoisted; if otherwise, she would have to be towed through the narrow passage. All seemed simple. But unlooked-for difficulties had yet to be surmounted.

The mouth of the passage is guarded by a kind of ridge of basalt, which at high tide we knew was barely covered with sufficient water to float the Chancellor, even when entirely unfreighted. To be sure she had been carried over the obstacle once before, but then, as I have already said, she had been caught up by an enormous wave, and might have been said to be lifted over the barrier into her present position. Besides, on that ever memorable night, there had not only been the orinaryordinary [sic] spring-tide, but an equinoctial tide, such a one as could not be expected to occur again for many months. Waiting was out of the question; so Curtis determined to run the risk, and to take advantage of the spring-tide, which would occur to-day, to make an attempt to get the ship, lightened as she was, over the bar; after which, he might ballast her sufficiently to sail.

The wind was blowing from the northwest, and consequently right in the direction of the passage. The captain, however, after a consultation, preferred to tow the ship over the ridge, as he considered it was scarcely safe to allow a vessel of doubtful stability at full sail to charge an obstacle that would probably bring her to a dead lock. Before the operation was commenced, Curtis took the precaution of having an anchor ready in the stern, for, in the event of the attempt being unsuccessful, it would be necessary to bring the ship back to her present moorings. Two more anchors were next carried outside the passage, which was not more than two hundred feet in length. The chains were attached to the windlass, the sailors worked at the hand-spikes, and


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224 (1759-1796) was an eminent poet, whose historical drama “Dyveke” and northern tales rank far above the average performances of that time, but death claimed him before he had attained his full development. (1756-1819) wrote plays of which the patriotic tragedy “Niels Ebbesen” was the most important, and met with great favor in its day. wrote a number of sentimental plays and tales, the value of which cannot be regarded as very high. On the other hand she succeeded so well in a translation of the works of Cervantes, particularly of his Don Quixote, that there has even recently been issued a new edition of the latter. Her letters, which have been preserved and published in our day contain interesting contributions to our knoweldge of the history of the social culture and of the life of prominent individuals of that period. The Norwegian (1755-1808) and the Dane  (1764-1827) are to be named as authors of plays. Among the works of the former we may mention “Dragedukhen” (the child bringing good luck); among those of the latter “Gulddaasen” (the golden box); both pieces long enjoyed great popularity.

Wessel’s last poem was a letter in rhymes in which he welcomed to Parnassos, when the latter in 1785 had published his first great work in verse, “Komiske Fortællinger.” And there was no one more eminently entitled to the inheritance that had been kept by Wessel than this very Baggesen, who was so skilful in clothing his sparkling wit in the most airy and elegant language. Baggesen was born in 1764 in the little town of Korsör in Zealand.


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 at four o'clock in the afternoon the Chancellor was in motion.

High tide would be at twenty minutes past four, and at ten minutes before that time the ship had been hauled as far as her sea-range would allow; her keel grazed the ridge, and her progress was arrested. When the lowest part of her stern, however, just cleared the obstruction, Curtis deemed that there was no longer any reason why the mechanical action of the wind should not be brought to bear and contribute its assistance. Without delay, all sails were unfurled and trimmed to the wind. The tide was exactly at its height, passengers and crew together were at the windlass, M. Letourneur, Andre, Falsten, and myself being at the starboard bar. Curtis stood upon the poop, giving his chief attention to the sails; the lieutenant was on the forecastle; the boatswain by the helm. The sea seemed propitiously calm and, as it swelled gently to and fro, lifted the ship several times.

"Now, my boys," said Curtis, in his calm clear voice, "all together! Off!"

Round went the windlass; click, click, clanked the chains as link by link they were forced through the hawse-holes.

The breeze freshened, and the masts gave to the pressure of the sails, but round and round we went, keeping time in regular monotony to the sing-song tune hummed by one of the sailors.

We had gained about twenty feet, and were redoubling our efforts when the ship grounded again.

And now no effort would avail; all was in vain; the tide began to turn: and the Chancellor would not advance an inch. Was there time to go back? She would inevitably go to pieces if left balanced upon the ridge. In an instant the captain has ordered the sails to be furled, and the anchor dropped from the stern.

One moment of terrible anxiety, and all is well.

The Chancellor tacks to stern, and glides back into the basin, which is once more her prison.

"Well, captain," says the boatswain, "what's to be done now?"

"I don't know," said Curtis, "but we shall get across somehow."


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Rh His parents were poor and his early education had been much neglected. But his excellent talents attracted the attention of friends who interested themselves in his behalf and gave him an opportunity to study. Even his first poems were marked by great beauty of form and evinced a very rare command of language. This gave him access to the most refined circles, where his great personal amiability soon made him a general favorite. He gained the good will of the art-loving duke of Augustenburg to such a degree that the latter at his own expense sent the young poet to Germany, Switzerland and France, during which journey he made the acquaintance of the most celebrated poets and philosophers, such as Voss, Klopstock, Wieland, Schiller, Herder, Jacobi and others. He also studied Kant’s philosophy, which filled him with so great enthusiasm that he assumed the name Immanuel in honor of the great philosopher. The varied impressions made on his receptive and susceptible mind by all the new things he saw, Baggesen embodied in his greatest prose work, “Labyrinthen eller Digtervandringer” (2 vols. 1792-1793) a work distinguished for its vivid and graphic descriptions and for its sparkling humor. When he returned to Denmark the narrow conditions of his country no longer satisfied his enlarged intellectual horizon, and he already then entertained the thought of becoming a German poet. He did not remain long in Denmark, but soon went abroad again and journeyed from place to place, continually occupied with great plans which never, however, were realized. He was always planning, never at rest. Prom 1800 to 1811 he resided almost without interruption in Paris. In 1811 he was appointed professor of the Danish language at the University of Kiel, but already in 1813 he abandoned this position and returned to Copenhagen. Here he at once began his great literary war with Oehlenschläger, which was to cause him so much trouble and to estrange from him almost all his friends. Then he once more left Denmark never to see it again. He died in 1826 in Hamburg on his return from


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24.—There was assuredly no time to be lost before we ought to leave Ham Rock reef. The barometer had been falling ever since the morning, the sea was getting rougher, and there was every symptom that the weather, hitherto so favorable, was on the point of breaking; and in the event of a gale the Chancellor must inevitably be dashed to pieces on the rocks.

In the evening, when the tide was quite low, and the rocks uncovered, Curtis, the boatswain, and Dowlas went to examine the ridge which had proved so serious an obstruction. Falsten and I accompanied them. We came to the conclusion that the only way of effecting a passage was by cutting away the rocks with pikes over a surface measuring ten feet by six. An extra depth of nine or ten inches would give a sufficient gauge, and the channel might be accurately marked out by buoys; in this way it was conjectured the ship might be got over the ridge and so reach the deep water beyond.

"But this basalt is as hard as granite," said the boatswain; "besides, we can only get at it at low water, and consequently could only work at it for two hours out of the twenty-four."

"All the more reason why we should begin at once, boatswain," said Curtis.

"But if it is to take us a month, captain, perhaps by that time the ship may be knocked to atoms. Couldn't we manage to blow up the rock? we have got some powder aboard."

"Not enough for that," said the boatswain.

"You have something better than powder," said Falsten.

"What's that? " asked the captain.

"Picrate of potash," was the reply.

And so the explosive substance with which poor Ruby had so grievously imperiled the vessel was now to serve her in good stead, and I now saw what a lucky thing it was that the case had been deposited safely on the reef, instead of being thrown into the sea.

The sailors went off at once for their pikes, and Dowlas and his assistants, under the direction of Falsten, who, as an engineer, understood such matters, proceeded to hollow out a mine wherein to deposit the powder. At first we hoped that everything would be ready for the blasting to take place


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 UDC 595.768.11

LBC 28.691.89

Lazarev M.A.

A revision of subspecies structure of Dorcadion (Cribridorcadion) scabricolle (Dalman, 1817) (Coleoptera, Cerambycidae).–Moscow: International Academy of Education, 2020.–100 pp.

ISBN 978-5-6042494-0-6

Publishing

International Academy of Education

Bolshaya Filevskaya, str., 28, building 2, Moscow 121433 Russia

Printed by

A.E.G Group

Tverskaya str., 27, building 5, office 15A, Moscow 125009 Russia

Lazarev A. Maxim

Free Economic Society of Russia, Department of Scientifics Conferences and All-Russian Projects

Tverskaya str., 22a, Moscow 125009 Russia

e-mail: cerambycidae@bk.ru; humanityspace@gmail.com

http://zoobank.org/urn:lsid:zoobank.org:pub:7AF98846-AA70-43F9-8E45-6CBF063A7576

Cover photo: Dorcadion (Cribridorcadion) scabricolle scabricolle (Dalman, 1817)


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 came, the better it will be for you." But to my great dismay and affright, I saw that no choice was left me now, except that I must climb somehow up that hill of water, or else be washed down into the pool and whirl around till it drowned me. For there was no chance of fetching back by the way I had gone down into it, and further up was a hedge of rock on either side of the water-way, rising a hundred yards in height, and for all I could tell five hundred, and no place to set a foot in.

Having said the Lord's Prayer (which was all I knew) and made a very bad job of it, I grasped the good loach-stick under a knot, and steadied me with my left hand, and so with a sigh of despair began my course up the fearful torrent-way. To me it seemed half-a-mile at least of sliding water above me, but in truth it was little more than a furlong, as I came to know afterwards. It would have been a hard ascent even without the slippery slime and the force of the river over it, and I had scanty hope indeed of ever winning the summit. Nevertheless my terror left me, now I was face to face with it, and had to meet the worst; and I set myself to do my best with a vigour and sort of hardness, which did not then surprise me, but have done so ever since.

The water was only six inches deep, or from that to nine at the utmost, and all the way up I could see my feet looking white in the gloom of the hollow, and here and there I found resting-place, to hold on by the cliff and pant awhile. And gradually as I went on, a


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 assigned his share of the body of the one ordained by fate to be the victim. For my own part, I profess that I was quite resigned for the lot to fall upon myself. I thought I heard Andre Letourneur beg for an exception to be made in favor of Miss Herbey; but the sailors raised a murmur of dissent. As there were eleven of us on board, there were ten chances to one in each one's favor—a proportion which would be diminished if Miss Herbey were excluded; so that the young lady was forced to take her chance among the rest.

It was then half-past ten, and the boatswain, who had been roused from his lethargy by what the carpenter had said, insisted that the drawing should take place immediately. There was no reason for delaying the fatal lottery. There was not one of us that clung in the least to life; and we knew that, at the worst, whoever should be doomed to die, would only precede the rest by a few days, or even hours.

All that we desired was just once to slake our raging thirst and moderate our gnawing hunger.

How all the names found their way to the bottom of a hat I cannot tell. Very likely Falsten wrote them upon a leaf torn from his memorandum-book. But be that as it may, the eleven names were there, and it was unanimously agreed that the last name drawn should be the victim.

But who would draw the names? There was hesitation for a moment; then "I will," said a voice behind me. Turning round, I beheld M. Letourneur standing with out-stretched hand, and with his long white hair falling over his thin livid face that was almost sublime in its calmness. I divined at once the reason of this voluntary offer; I knew that it was the father's devotion in self-sacrifice that led him to undertake the office.

"As soon as you please," said the boatswain.

M. Letourneur proceeded to draw out the folded strips of paper, one by one, and, after reading out loud the name upon it, handed it to its owner.

The first name called was that of Burke, who uttered a cry of delight; then followed Flaypole and the boatswain. What his name really was I never could exactly learn. Then came Falsten, Curtis, Sandon. More than half had now been called, and my name had not yet been drawn. I calculated my remaining chance; it was still four to one in my favor.


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132 “Dearest Winifred: “I signed on as a despatch rider today and was told that I should be required to go out at once. I go tonight —how and where exactly 1 have not yet heard. Shall let you know when I have an address. I am sorry it was not possible to sce you before going. However, I expect it will be a short business.

“Yours very sincerely,

“Bertie Wright.”

And so it happened that she was to remember him always as he stood before her in the sunshine that afternoon on Leith Hill

III
Ta1s she did not see. A long, straight, narrow road, bordered with foplars, along which streamed an endess procession of weary, haggard infantry, white with dust, their faces turning every now and then toward a low, timbered ridge some two miles away across a stretch of sun-bathed fields. A farmhouse beside the road in flames, and in the middle of the pavé, just opposite the entrance to the farmhouse, two stretcher-bearers on their knees busy with a motionless figure. Leaning against the wall of the farmhouse a motor-bicycle, from the tank of which oil still dripped slowly.

“Shawn’t ’ave to carry 'im far,” said one of the stretcher-bearers. “’E’s as good as gone as it is. Hup!”

IV
He was lying in bed when she next saw him, toward the close of a wet afternoon in November. They had found one of her letters in the flap of his pay-book and had written to ask if she could furnish the names and addresses of any relatives.

He was asleep, so that at first she did not realize the greatness of his misfortune. His head was bandaged, and there were some healing scars on his unshaven face. She turned to the nurse in silent interrogation, and the nurse’s eyes, kindly evasive, at once awakened her suspicion.

“I—we are to be married,” she said steadily. *““Is he—is there any danger?”’

The nurse shook her head, hesitated for some instants, then, divining that here there was no likelihood of hysterics or fainting fits, spoke the succinct and dismaying truth.

“l am very sorry,” she said gently. “He is blind—and they have had to amputate his right arm. His head does not seem very clear—yet. But they think that will come all right.”

There was a long silence.

“Oh!” said Miss Barker at length, quietly.

She bent over the bed and kissed her boy’s lips.

“I won't wake him now,” she said, twisting her veil under her very adorable chin. “I shall come again tomorrow. Please don’t tell him that I came today.”

But next day she could not be sure that he even knew who she was; he seemed dazed and stupid, and when he did speak, spoke of things and people with unfamiliar names. a good deal, until an agony of pain fell upon him and caused him to moan incessantly until the time came for visitors to leave the hospital.

The nurses were very kind to her, and a wan-faced but cheery Highlander in the next cot to Bertie’s, who had lost both legs from the knee downward, made a stout-hearted attempt, by way of distraction, to show her his stumps.

In her room at the dreary little Station Hotel that evening Miss Barker cried undemonstratively at intervals of half an hour or so. It was quite clear to her that Bertie’s carcer as a useful, money-making, ornamental citizen was finished and done with. That right arm, even, might have been dispensed with; but blind … and … well … dull!

What was to be done with a man like that? What was to be done.

Ah! that careless sunlit afternoon on Leith Hill. Bertie. Her own, darling,


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 How long it seemed before the morning dawned! and when that morning came it brought another fog, heavy as before, that again shut out the horizon. The fog was hot as the burning steam that issues from a boiler. It was to be my last day upon earth, and I felt that I should like to press the hand of a friend before I died. Curtis was standing near, and crawling up to him, I took his hand in my own. He seemed to know that I was taking my farewell, and with one last lingering hope he endeavored to restrain me. But all in vain; my mind was finally made up.

I should have liked to speak once again to M. Letourneur, Andre, and Miss Herbey, but my courage failed me. I knew that the young girl would read my resolution in my eyes, and that she would speak to me of duty, and of God, and of eternity, and I dared not meet her gaze; and I would not run the risk of being persuaded to wait until a lingering death should overtake me. I returned to the back of the raft, and after making several efforts, I managed to get on to my feet. I cast one long look at the pitiless ocean and the unbroken horizon; if a sail or the outline of a coast had broken on my view, I believe that I should only have deemed myself the victim of an illusion; but nothing of the kind appeared, and the sea was dreary as a desert.

It was ten o'clock in the morning. The pangs of hunger and the torments of thirst were racking me with redoubled vigor. All instinct of self-preservation had left me, and I felt that the hour had come when I must cease to suffer. Just as I was on the point of casting myself headlong into the sea, a voice, which I recognized as Dowlas's, broke upon my ear.

"Captain," he said, "we are going to draw lots."

Involuntarily I paused; I did not take my plunge, but returned to my place upon the raft.

26.—All heard and understood the proposition; in fact it had been in contemplation for several days, but no one had ventured to put the idea into words. However, it was done now; lots were to be drawn, and to each would be


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 works on a.r.s. Erlich gained his access to the Internet through defendant Thomas Klemesrud’s (“Klemesrud’s”) BBS “support.com.” Klemesrud is the operator of the BBS, which is run out of his home and has approximately 500 paying users. Klemesrud’s BBS is not directly linked to the Internet, but gains its connection through the facilities of defendant Netcom On-Line Communications, Inc. (“Netcom”), one of the largest providers of Internet access in the United States.

After failing to convince Erlich to stop his postings, plaintiffs contacted defendants Klemesrud and Netcom. Klemesrud responded to plaintiffs’ demands that Erlich be kept off his system by asking plaintiffs to prove that they owned the copyrights to the works posted by Erlich. However, plaintiffs refused Klemesrud’s request as unreasonable. Netcom similarly refused plaintiffs’ request that Erlich not be allowed to gain access to the Internet through its system. Netcom contended that it would be impossible to prescreen Erlich’s postings and that to kick Erlich off the Internet meant kicking off the hundreds of users of Klemesrud’s BBS. Consequently, plaintiffs named Klemesrud and Netcom in their suit against Erlich, although only on the copyright infringement claims.

On June 23, 1995, this court heard the parties’ arguments on eight motions, three of which relate to Netcom and Klemesrud and are discussed in this order: (1) Netcom’s motion for summary judgment; (2) Klemesrud’s motion for judgment on the pleadings; and (3) plaintiffs’ motion for a preliminary injunction against Netcom and Klemesrud. For the reasons set forth below, the court grants in part and denies in part Netcom’s motion for summary judgment and Klemesrud’s motion for judgment on the pleadings and denies plaintiffs’ motion for a preliminary injunction.

A. Summary Judgment Standards

Because the court is looking beyond the pleadings in examining this motion, it will be treated as a motion for summary judgment rather than a motion to dismiss. Grove v. Mead School District, 753 F.2d 1528, 1532 (9th Cir.1985). Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). There is a “genuine” issue of material fact only when there is sufficient evidence such that a reasonable juror could find for the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52, 106 S.Ct. 2505, 2511–12, 91 L.Ed.2d 202 (1986). Entry of summary judgment is mandated against a party if, after adequate time for discovery and upon motion, the party fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The court, however, must draw all justifiable inferences in favor of the nonmoving parties, including questions of credibility and of the weight to be accorded particular evidence. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520, 111 S.Ct. 2419, 2434–35, 115 L.Ed.2d 447 (1991).

B. Copyright Infringement

To establish a claim of copyright infringement, a plaintiff must demonstrate (1) ownership of a valid copyright and (2)


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 304 was of noble birth, and as such her son took precedence. The story of this lady has special attraction for the early Arab writers. Amid the courtly luxuries of Damascus, she pined for the freedom of the Desert, and gave vent to her longing in verse, of which the following famous and often translated lines may be taken as a specimen:—

The lady’s verses, coming to Muʿāwiya's ears, displeased him. Like ʿAlī, he had become from luxurious living obese and portly, and felt the taunt of his wife aimed at himself. So he dismissed Yezīd with his mother to the tents of her tribe, the Beni Kelb, where in boyhood he acquired his Bedawi taste for the chase and a roving life.


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 the world was one fluid sphere, uniform, monotonous, as in the most primitive period of its formation. Nevertheless it must be owned that it was with a certain amount of impatience that I awaited the rising of the mist, for I was anxious to shake off the phantom fallacies that Curtis's words had suggested to my mind.

Not till eleven o'clock did the fog begin to break, and as it rolled in heavy folds along the surface of the water, I could every now and then catch glimpses of a clear blue sky beyond. Fierce sunbeams pierced the cloud-rifts, scorching and burning our bodies like red-hot iron; but it was only above our heads that there was any sunlight to condense the vapor; the horizon was still quite invisible. There was no wind, and for half an hour longer the fog hung heavily round the raft, while Curtis, leaning against the side, strove to penetrate the obscurity. At length the sun burst forth in full power, and, sweeping the surface of the ocean, dispelled the fog and left the horizon open to our eyes.

There, exactly as we had seen it for the last six weeks, was the circle that bounded sea and sky—unbroken, definite, distinct as ever! Curtis gazed with intensest scrutiny, but did not speak a word. I pitied him sincerely, for he alone of us all felt that he had not the right to put an end to his misery. For myself, I had fully determined that if I lived till the following day, I would die by my own hand. Whether my companions were still alive, I hardly cared to know; it seemed as though days had passed since I had seen them.

Night drew on, but I could not sleep for a moment. Toward two o'clock in the morning my thirst was so intense that I was unable to suppress loud cries of agony. Was there nothing that would serve to quench the fire that was burning within me? What if, instead of drinking the blood of others, I were to drink my own? It would be all unavailing, I was well aware; but scarcely had the thought crossed my mind, than I proceeded to put it into execution. I unclasped my knife, and, stripping my arm, with a steady thrust I opened a small vein. The blood oozed out slowly, drop by drop, and as I eagerly swallowed the source of my very life, I felt that for a moment my torments were relieved. But only for a moment; all energy had failed my pulses, and almost immediately the blood had ceased to flow.


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a long and prosperous reign, Muʿāwiya died about seventy-five years of age. As he felt the end approach, he brought forth a casket, carefully kept, with parings of the Prophet's nails. Of these, ground fine, he bade them sprinkle the powder in his eyes and mouth when dead, and bury him, for a winding-sheet, in a garment given to him by Moḥammad. Fortune had favoured his protracted rule. Since the abdication of Al-Ḥasan, there had been peace throughout the Empire. Wise, courageous, and forbearing, he held the dangerous elements around him in check; consolidated and extended the already vast area of Islām; and nursed commerce and the arts of peace, so that they greatly flourished in his time. The secret of his success probably lay in the fact that he always took the offensive. All through his Caliphate he waged unremitting war against the Emperor. Domestic affairs he left to his stadtholders. But he looked to the future with anxiety.

305


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 Abstract

The species includes 39 subspecies. The type locality is Georgia. Seven populations of D. (C.) s. scabricolle are known from the republic. One population of the type subspecies is situated in north Armenia.

D. (C.) s. shirakense, '''ssp. n.''' (type locality Lernavan environs, 40°48′10.57″N 44°09′58.10″E, 1893 m) is distributed all over west part of Armenia and in north-east Turkey.

Seven more subspecies are recognized in Armenia: D. (C.) s. tavushense, '''ssp. n. (type locality–Idzhevan environs, Acharkut, about 41°2′9″N, 45°5′6″E, 800 m) in north Armenia, D. (C.) s. gegarkunicum, ssp. n. (type locality–Akhberk environs, 40°32′58″N, 45°17′09″E, 2280 m) around north part of Sevan Lake, D. (C.) s. sevangense Reitter, 1889 (type locality–environs of Sevan-city)–high mountains all acrros cenral part of Armenia, D. (C.) s. pseudosevangense, ssp. n. (type locality–Noravan environs, 39°32′15″N, 46°07′56″E, 2000 m) at the east part of D. (C.) s. sevangense area, D. (C.) s. vaykense, ssp. n. (type locality–Vayk environs, 3.6 km northwards Zaritap, 39°40′11″N, 45°30′28″E, 1300 m)–south of Marz Vayots Dzor, D. (C.) s. tekhense, ssp. n. (type locality–Tekh, 39°34′6″N, 46°25′52″E, 1600 m)–north-east of Marz Syunik, D. (C.) s. tuzovi, ssp. n. (type locality–Megri environs)–south-east part of Armenia with penetration to Nakhchivan Autonomous Republic; a new subspecies is described from Nagorno-Karabakh Republic: D. (C.) s. artsakhense, ssp. n.''' (type locality–Shishkend environs, 39°45′52″N, 46°48′09″E, 1190 m).

Six subspecies are accepted for Nakhchivan Autonomous Republic including D. (C.) s. buzgoviense, '''ssp. n. (type locality–Buzgov environs, about 39°31′7″N, 45°23′23″E, 1700 m), D. (C.) s. shakhbuzum, ssp. n. (type locality–Shakhbuz District, Bichenek environs, 39°30′50″N, 45°46′28″E, 1940 m), D. (C.) s. araxense, ssp. n.' (type locality–Negram environs, 39°5′N, 45°24′13″E, 790 m), D. (C.) s. paiz Danilevsky, 1999 (type locality–Paiz env., 39°25′30″N, 45°23′14″E, 1300 m), D. (C.) s. nakhiczevanum Danilevsky, 1999 (type locality-south slope of Bichenek pass, 39°31′58″N, 45°47′51″E, 2100 m), D. (C.) s. dobrovljanskii'' Suvorov, 1915 (type locality–Kyukyu village, about 39°31′27″N, 45°37′18″E).

Two subspecies are distributed in Azerbaijan: D. (C.) s. modestum Tournier, 1872, '''nom. rest.''' (type locality–Azerbaijan, Shamkir [before Annenfeld], 40°50′83″N, 46°01′02″E)–from north-west Azerbaijan and


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 306 The nomination of Yezīd as successor was sure to meet with opposition when he was gone. From his deathbed, therefore, he sent a message to Yezīd, who was absent at his hunting-place, warning him of the rocks that lay ahead.There were three, he said, of whom he must beware—the two ʿAbdallahs, sons of ʿOmar and Az-Zubeir, and Al-Ḥosein son of ʿAlī. The first, a pious devotee, would easily be put aside. "As for Al-Ḥosein," he continued, "the restless men of Al-ʿIrāḳ will give him no peace till he attempt the Empire; when thou hast gotten the victory, deal gently with him, for truly the blood of the Prophet runneth in his veins. It is ʿAbdallah son of Az-Zubeir that I fear the most for thee. Fierce as the lion, crafty as the fox, destroy him root and branch."

The first care of Yezīd on assuming the Caliphate—the date was 1 vii. 60, April 7, 680 —was to require those who had before refused to swear allegiance at Medīna, now to take the oath, the order being written on a leaf no larger than a mouse's ear. Two of these, the sons of ʿOmar and Al-ʿAbbās, complied with the command. But the sons of Az-Zubeir and Al-Ḥosein, both feigning time for consideration, escaped to Mecca.

Since its capture by Moḥammad, no enemy had dared to go up against the Holy City; and there, inviolate as the doves that fluttered around the Temple, conspirators abusing the asylum were wont to plot against the Empire. As Muʿāwiya had foreseen, ʿAbdallah, the ambitious son of Az-Zubeir, aimed at the Caliphate; but so long as Al-Ḥosein survived he dissembled, professing to bow to the superior claims of the Prophet's grandson.

At Al-Kūfa, the house of ʿAlī was still after a fashion popular, Al-Ḥasan, it is true, found little support during his short-lived Caliphate there; but the fond and fickle populace now turned eagerly to Al-Ḥosein his brother. Promises of support poured in upon him, if he would but appear at Al-Kūfa and there claim regal rights. His friends at Mecca besought that he would not trust to the slippery missives of that factious city. But the son of Az-Zubeir, to be rid of his rival, fostered the design; and Al-Ḥosein,


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1. Educational policy

Schools were viewed by the incoming Communist government as having two functions: to train the specialists needed by the economy and to inculcate the young with the ideological orientation of a Socialist society. In order to accomplish these aims the system was restructured to conform to the Soviet model, and options as to the kind of education available were severely restricted. The matching of student and school in secondary and higher education was determined on the basis of economic needs and not by student preference. There was a major expansion of vocational education, especially in the industrial and agricultural fields. Vocational subjects and periods of practical work in factories or on farms were made compulsory in all schools. Textbooks and syllabuses were rewritten to make them conform to the ideology and objectives of the Communist Party. Only candidates with proven sympathies for the regime were considered for admission to secondary and higher education, and preference was given first to children of Communist Party members and then to children of working class and peasant origin regardless of academic qualifications. In order to reduce the time of study, emphasis was placed on occupational training and ideological origination, and so-called superfluous subjects were eliminated. The net result of these changes was narrow specialization and a lowering of the standards of education.

By 1960 it was evident that the new school system was not producing graduates of the kind and quality needed for the functioning of the society. The radical excision of much of the traditional liberal, or cultural, curriculum during the first Communist decade resulted in a graduate which came to be perceived as being without the intellectual depth and judgmental capabilities to man a modern economic and social system. Consequently, the early 1960's witnessed modifications in some of the fundamental constructs of the system in order to provide for a broader education for all and greater differentiation between pure vocational training and a higher level of general and technical education. Emphasis on exclusively Marxist ideological indoctrination was relaxed and a restricted study of alternative ideologies was tolerated. At the elementary level, criteria were established for grading the economic potential of students and those with the most promise were provided with training specifically designed to facilitate entry into the secondary school curriculum. "Hands-on" work was eliminated from the academic secondary school curriculum beginning in 1964/65 because it was found to be interfering with the college preparatory objectives of the school. At the same time, however, greater emphasis was put on the study of the theoretical aspects of new production technologies. In 1968 the secondary school curriculum was expanded from 3 to 4 years in order to provide a better foundation for those who would pursue college careers. The 1966 "law on universities" formally acknowledged the role of higher education in the development of society and granted more administrative and financial autonomy to the universities. For the first time since 1948, university scientific councils were permitted to elect high academic officials—rectors, prorectors, deans, and vice deans—from among their own professional staff. The Law of 1966 also prohibited the practice of numerus clausus (numerical restriction on enrollment) based on social and political criteria. Although this legislation did not basically alter party control over education, it did restore a measure of confidence to the entire scholastic community and encouraged the universities to push for additional reforms.

The liberalizing trends of the 1960's which culminated in the Dubcek regime, clearly showed the ineffectiveness of the political indoctrination in the schools. Students and teachers were strongly represented among those who exerted major pressure for political reform during the Dubcek interlude and who were most vocal in expressing unorthodox political and economic views. Major blame for the failure of indoctrination was placed on teachers, who became the target of a major purge when the orthodox forces regained control of events and launched a "normalization" drive during 1969 and 1970. Hundreds of liberal professors and administrators were removed from academic institutions, including a third of the faculty of Charles University, Czechoslovakia's most prestigious institution of higher learning. Up to 80% of all teachers in the country were reassigned to new schools in order to eliminate any undesirable ideological bonds they might have established with the student body.

The Husak regime has placed primary emphasis on political indoctrination for students and teachers alike. Strict state control of education was reimposed on 1 January 1970, when the government empowered Czech and Slovak Ministers of Education to appoint and recall administrators and educators and to create, abolish, or reorganize educational and scientific institutions. Directives in 1970 and 1971 defined the principal role of education as that of training specialists who have accepted Socialist ideological orientation and who display a willingness to use their talents to further the aims of socialism in all fields of

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 mortification of others, who pretended to have suffered many a malicious trick by his sorcery; for if he had not been absent at that time, his ill wishers would certainly have forged a pretext to deliver him up to the civil power, as a suspicious person, because he never went to church, although he was supposed to be a roman catholic.

Some days after the above mentioned prisoners had been set at liberty, he returned to A, on a holiday after sun set. The children playing in the streets no sooner espied him, than they ran towards him, hailing their hoary benefactor, with loud shouts, searching his pockets for sweetmeats, and teazing the poor old man so unmercifully, that he at last grew angry, and threatened to chastise the troublesome crowd with his staff; however, their demands grew still more clamorous, and some of them began to prick him with pins, which at length obliged him to put his threats in execution.


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Rh The men in the sailboats were also aware of their danger.

The boys had a glimpse of one man waving his arms. One of the boats veered out abruptly and the yardarm swung around. The sailboat was lying directly in the path of the Envoy.

The roaring of the engine, the threshing of the sails, the warning shouts of the boys, all created a confusion of sound. The white sails seemed to loom high above the speeding boat. A hideous collision appeared to be inevitable.

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 on the following morning, but when daylight appeared we found that the men, although they had labored with a will, had only been able to work for an hour at low water and that four tides must ebb before the mine had been sunk to the required depth.

Not until eight o'clock on the morning of the 23d was the work complete. The hole was bored obliquely in the rock, and was large enough to contain about ten pounds of explosive matter. Just as the picrate was being introduced into the aperture, Falsten interposed:

"Stop," he said, "I think it will be best to mix the picrate with common powder, as that will allow us to fire the mine with a match instead of the gun-priming which would be necessary to produce a shock. Besides, it is an understood thing that the addition of gunpowder renders picrate far more effective in blasting such rocks as this, as then the violence of the picrate prepares the way for the powder which, slower in its action, will complete the disseverment of the basalt."

Falsten is not a great talker, but what he does say is always very much to the point. His good advice was immediately followed; the two substances were mixed together, and after a match had been introduced the compound was rammed closely into the hole.

Notwithstanding that the Chancellor was at a distance from the rocks that insured her from any danger of being injured by the explosion, it was thought advisable that the passengers and crew should take refuge in the grotto at the extremity of the reef, and even Mr. Kear, in spite of his many objections, was forced to leave the ship. Falsten, as soon as he had set fire to the match, joined us in our retreat.

The train was to burn for ten minutes, and at the end of that time the explosion took place; the report, on account of the depth of the mine, being muffled, and much less noisy than we had expected. But the operation had been perfectly successful. Before we reached the ridge we could see that the basalt had been literally reduced to powder, and that a little channel, already being filled by the rising tide, had been cut right through the obstacle. A loud hurrah rang through the air; our prison-doors were opened, and we were prisoners no more.

At high tide the Chancellor weighed anchor and floated


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 When the mothers of those ill-mannered boys saw the old man plying the backs of their darlings with his staff, they attacked him like furies, to revenge their children's wrongs and the prophanation of the holiday, and by their vociferations alarmed the whole neighbour hood: The husbands of the enraged dames came soon to their assistance; the children began terribly to roar when they saw their old friend in danger of being torn to pieces by their parents, and poor Peter was glad when he got out of the clutches of the merciless multitude, after having sustained many a hard blow, and hastened with all possible speed to shelter himself from farther insult in his humble cottage.

But who can describe the terror he was siezed with, when he perceived that he had lost his wallet in the scuffle! Raving like a madman did he rush out of his hut, to recover his property, which was carried away in triumph by the victorious party: He exhausted all the rhetoric he was master of, entreated


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second was precious.

Frank Hardy realized the full extent of their peril and in the same moment he realized the only way of averting it.

Without a word he sprang toward the helm, brushing Biff Hooper aside. In this emergency, Biff was helpless. Swiftly, Frank bore down on the wheel, bringing the boat around into the wind. At the same time, he opened up the throttle so that the Envoy leaped forward at her highest speed.

The motorboat passed just a few inches in front of the bow of the first sailboat; so close, Chet Morton said afterward, that he "could count every stitch on the patch in the sailcloth." But the danger was not yet over. There was still the other sailboat to be considered. It was pounding along immediately ahead of them; the man at the tiller was making frantic efforts to get out of the way, but the danger lay in the fact that in trying to guess the pos-

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 out into the sea, but she was not in a condition to sail until she had been ballasted; and for the next twenty-four hours the crew were busily employed in taking up blocks of stone, and such of the bales of cotton as had sustained the least amount of injury.

In the course of the day, M. Letourneur, Andre, Miss Herbey, and I took a farewell walk round the reef, and Andre, with artistic skill, carved on the wall of the grotto the word Chancellor the designation of Ham Rock, which we had given to the reef and the date of our running aground. Then we bade adieu to the scene of our three weeks' sojourn, where we had passed days that to some at least of our party will be reckoned as far from being the least happy of their lives.

At high tide this morning, the 24th, with low, top, and gallant sails all set, the Chancellor started on her onward way, and two hours later the last peak of Ham Rock had vanished below the horizon.

24 to December 1.—Here we were then once more at sea, and although on board a ship of which the stability was very questionable, we had hopes, if the wind continued favorable, of reaching the coast of Guiana in the course of a few days.

Our way was southwest and consequently with the wind, and although Curtis would not crowd on all sail lest the extra speed should have a tendency to spring the leak afresh, the Chancellor made a progress that was quite satisfactory. Life on board began to fall back into its former routine; the feeling of insecurity and the consciousness that we were merely retracing our path doing much, however, to destroy the animated intercourse that would otherwise go on between passenger and passenger.

The first few days passed without any incident worth recording, then on the 29th, the wind shifted to the north, and it became necessary to brace the yards, trim the sails, and take a starboard tack. This made the ship lurch very much on one side, and as Curtis felt that she was laboring far too


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Rh sible course of the Envoy he might make a false move that would have him shoot directly across its path.

Frank swung the helm around again. Once more, the Envoy veered to the left so sharply that a cloud of spray drenched the boys. Another shift of the wheel and the motorboat zigzagged safely past the sailboat and on out into open water.

Not one of the boys had uttered a word during this. They had been tense and anxious, but now that the peril of a smash-up had been averted, they sank back with sighs of relief.

"I sure thought we were headed for Davy Jones' locker that time!" breathed Chet.

Biff Hooper looked up at Frank.

"Thanks," he said. "I'd have never got out of that mess if you hadn't taken the wheel. I was so rattled that I didn't know what to do."

"After you've run the boat a few more weeks you’ll get so used to it that it'll be second nature to you. But that sure was a tight squeeze," Frank admitted. "It mighty near meant that you wouldn't have had any motorboat left to go on that trip with."

"It mighty near meant that we wouldn't have been left to make the trip at all," Chet declared solemnly. "What say we go home? I've had enough excitement for one day."

"It's beginning to rain, anyway," Biff re-

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12 marked, glancing up at the sky. "I guess we may as well go back."

The sky had clouded over in the past hour and the eastern sky was black, while scurrying masses of ragged clouds flew overhead before the stiffening wind. A few drops of water splashed into the boat, then came a gust of rain, followed by a light shower that passed over in a few minutes. The big motorboat that had crowded them had disappeared.

"A real storm coming up," Frank said. "Let's make for the boathouse."

The Envoy headed for Bayport.

"I'd like to tell those three fellows in that other boat what I think of them," declared Biff. "They got us into that jam. They were crowding me so close that I didn't have a chance to keep an eye on the sailboats."

"I still can't see why they drew up alongside," Joe observed. "They seemed mighty inquisitive. Gave us all the once-over."

Chet offered a solution.

"Perhaps they thought we were some one else and when they found out their mistake they went away."

"But they didn't go away," Frank pointed out. "They kept crowding us over. And one of them pointed at Biff."

"At me?"

"Yes."

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Rh "I didn't notice that."

"He seemed to recognize you and was pointing you out to the other men."

"Well, if he recognized me I can't return the compliment. I never saw any of them before in my life."

"He was probably pointing you out as a unique specimen," ventured Joe, with a grin. "Probably those fellows are from a museum, Biff. They'll likely make an offer for your carcass after you're dead and they'll have it stuffed and put it on display in a glass case. That's why they were so interested."

Joe's suggestion elicited warm words from Biff and a friendly struggle ensued. Inasmuch as Biff Hooper was the champion boxer and wrestler of Bayport High, Joe was at a disadvantage, and paid for his derogatory remarks by being held over the side by the scruff of the neck and given a ducking until he pleaded for mercy.

By the time the boys reached Bayport it was raining heavily, and after leaving the Envoy in the boathouse they raced up the street to the Hardy boys' home. The barn in the back yard was a favorite retreat of the chums and there they spent many of their Saturday afternoons. The barn was fitted up as a gymnasium, with parallel bars, a trapeze, boxing gloves and a punching bag, and was an

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times made of hollow'd Timber covered with Parchment or other Skin wetted, having a Bow for its Neck, the Strings ty'd longer or shorter, as they would alter their sounds. The Figures of some of these instruments are hereafter graved. They have likewise in their Dances Rattles ty'd to their Legs and Wrists, and in their Hands, with which they make a noise, keeping time with one who makes a sound answering it on the mouth of an empty Gourd or Jar with his Hand. Their Dances consist in great activity and strength of Body, and keeping time, if it can be. They very often tie Cows Tails to their Rumps, and add such other odd things to their Bodies in several places, as gives them a very extraordinary appearance.

Rh


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226 a journey abroad, without reaching his native land, where he had wished to breathe his last.

Besides the works of Baggesen already described, we must make mention of his numerous lyrical poems and his numerous rhymed letters, all of which are marked by a refined and graceful style and a charming rhythm. The form of this kind of poetical composition had already been introduced by Wessel in his comical tales, but by Baggesen it was developed to perfection, and here his wonderful command of language shone in its greatest splendor. Particularly interesting is his witty æsthetical satire “Gjengengeren og han selv, eller Baggesen over Baggesen” (The ghost and himself, or Baggesen on Baggesen), which dates from the time when his mind was in its greatest fermentation (1807). In this production the poet makes an attempt to break with the olden time and to rise to the heights of the new era, which was dawning victorious on all sides, and the legitimate claims of which Baggesen was thoroughly able to appreciate. But his poem provoked decided opposition on account of its violent attack on persons and principles that enjoyed general recognition, and to which Baggesen had himself formerly paid his homage, and his prophecies concerning the new epoch which he was going to found were not fulfilled. Among his prose works we must not omit to mention his graceful translation of Holberg’s Niels Klim.

Baggesen has been called “the poet of the graces,” a surname which he well deserves, for all his writings are marked with a rare grace and beauty of form. But his poetry lacks marrow, it lacks a definite concise view. It is full to overflowing with longing and desire, but that is all. On the other hand he moves with a grace and confidence never equalled by any of his predecessors in the most varied poetical moods, from the most sublime pathos to the most wanton humor. This in connection with an entirely exceptional intellectual tendency, gives him a very distinct position in Danish literature. He does not belong to the old time, for


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Rh he was continually striving to get beyond its narrow circle of ideas. Nor does he belong to the modern time, for he merely felt a foreboding of that which was to come, without being able to take a share in it. Few poets have contained a larger number of contrasts or been less able to control them, notwithstanding the great versatility of mind, which was ever at his service. But perhaps the latter was the very cause of the former phenomenon.


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 ” of protectable expression by the defendant. Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir.), ''cert. denied'', 484 U.S. 954, 108 S.Ct. 346, 98 L.Ed.2d 372 (1987). Infringement occurs when a defendant violates one of the exclusive rights of the copyright holder. 17 U.S.C. § 501(a). These rights include the right to reproduce the copyrighted work, the right to prepare derivative works, the right to distribute copies to the public, and the right to publicly display the work. 17 U.S.C. §§§ [sic] 106(1)–(3) & (5). The court has already determined that plaintiffs have established that they own the copyrights to all of the Exhibit A and B works, except item 4 of Exhibit A. The court also found plaintiffs likely to succeed on their claim that defendant Erlich copied the Exhibit A and B works and was not entitled to a fair use defense. Plaintiffs argue that, although Netcom was not itself the source of any of the infringing materials on its system, it nonetheless should be liable for infringement, either directly, contributorily, or vicariously. Netcom disputes these theories of infringement and further argues that it is entitled to its own fair use defense.

 * 1. Direct Infringement

Infringement consists of the unauthorized exercise of one of the exclusive rights of the copyright holder delineated in section 106. 17 U.S.C. § 501. Direct infringement does not require intent or any particular state of mind, although willfulness is relevant to the award of statutory damages. 17 U.S.C. § 504(e).

Many of the facts pertaining to this motion are undisputed. The court will address the relevant facts to determine whether a theory of direct infringement can be supported based on Netcom’s alleged reproduction of plaintiffs’ works. The court will look at one controlling Ninth Circuit decision addressing copying in the context of computers and two district court opinions addressing the liability of BBS operators for the infringing activities of subscribers. The court will additionally examine whether Netcom is liable for infringing plaintiffs’ exclusive rights to publicly distribute and display their works.

The parties do not dispute the basic processes that occur when Erlich posts his allegedly infringing messages to a.r.s. Erlich connects to Klemesrud’s BBS using a telephone and a modem. Erlich then transmits his messages to Klemesrud’s computer, where they are automatically briefly stored. According to a prearranged pattern established by Netcom’s software, Erlich’s initial act of posting a message to the Usenet results in the automatic copying of Erlich’s message from Klemesrud’s computer onto Netcom’s computer and onto other computers on the Usenet. In order to ease transmission and for the convenience of Usenet users, Usenet servers maintain postings from newsgroups for a short period of time—eleven days for Netcom’s system and three days for Klemesrud’s system. Once on Netcom’s computers, messages are available to Netcom’s customers and Usenet neighbors, who may then download the messages to their


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ITH Baggesen we have already advanced far into the present century. But before taking leave of the eighteenth century we must take a brief glance at the state of things prevailing at its close in order to see how such a man was needed to infuse new life into the whole nation. It is true there was a vigorous and talented activity in many directions, but the fruits of the work done were small in proportion to the strength expended. Both the greatest poets which the age had produced died uncomprehended and by no means sufficiently appreciated, while inferior talent occupied prominent places. Characteristic of the poetical taste of the time is the circumstance that preference was accorded by the public to drinking songs. They were regarded as the main requisite for social intercourse, and accordingly this kind of poetry reached at this time its golden age. In many things there was, of course, strife and fermentation. Opposite tendencies struggled for the supremacy; orthodoxy contended with rationalism, enthusiasm for foreign productions with the national sentiment just awaking, and yet there was a striking smallness and insignificance in all matters pertaining to the world of thought. There existed, to be sure, some


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Rh conditions for intellectual life, but the most important thing, life itself, was wanting. The eighty years’ peace had in this respect exerted an unfavorable influence; interest for all great things had relaxed, and the minds of men were wrapped up in little things. But with the beginning of the new century there was a complete change. The great misfortunes by which the country was visited and the glorious battle with the English fleet on the 2nd of April, 1801, from which the weak Danish ships came out unconquered, roused the people from their slumber; grand thoughts were conceived and were diffused by their originators among the whole people, who from that moment rapidly qualified themselves to receive and appreciate them; in short, the prolific intellectual development, which still continues without abatement, began. Its foremost representative is Oehlenschläger.

was born in Copenhagen, November 14, 1779. His father belonged to a family, the members of which had for many generations been organists and schoolmasters, and was a German both in language and feeling. His mother was the daughter of a plain Copenhagen citizen, and had also received a German education. The year after Adam’s birth, his father, who was an organist at the church belonging to the small palace of Frederiksburg, was appointed a deputy superintendent of the palace (Slotsforvalterfuldmægtig), with free rooms for himself and family out there. Here the future poet grew in happy though modest circumstances, which could not fail to have a favorable influence on his vivacious and susceptible mind. The palace was as a rule occupied only during the summer, and then it teemed with gentlemen in gorgeous uniforms, and with pretty, handsomely dressed women. During the remainder of the year the boy, his sister and their playmates had as it were the whole palace, with its halls adorned with pictures, and with its park and gardens at their exclusive disposal as their play-ground. The place was quiet and isolated, and yet it was the source of a multitude of impressions that stamped


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230 themselves indelibly on the lad’s imagination. He read everything that he could lay his hands on, folk-lore, tales, novels, plays, indiscriminately, yet while his fancy was thus incessantly receiving nourishment from the most various sources, but very little was done to develop the other faculties of his mind until an accidental circumstance brought him to the poet Edward Storm. The latter was inspector of a school, in which he procured the boy free tuition. When he had left school it was decided that he should become a merchant, but before this was brought about, his long-cherished desire to devote himself to study ripened into maturity. But for one reason and another he did not make much progress in his studies. Instead of occupying himself with the ancient classics he read novels and descriptions of travel, and instead of the essays which he was required to write, he composed tales and dramas which he played with his friends. This suggested to him the thought of becoming an actor. His lively, imaginative nature had long been drawing him to the stage, and he believed that this was the right road by which to attain his object. Accordingly, he made his début, but he soon found that he had made a mistake, and left the theatre in order to take up his studies again. In this resolve he was strengthened by the brothers, and, who, notwithstanding their youth, had already distinguished themselves by the publication of valuable scientific works, and with whom he happened to be on very friendly terms. In his twenty-first year he entered the Copenhagen University, where he at first devoted himself very assiduously to the study of jurisprudence, but he soon turned again to occupations which had more attraction for him. He had already begun to take a deep interest in northern antiquities, and wrote a prize essay on the question whether Norse mythology furnished suitable materials for sculpture, a standpoint which he advocated with much warmth. The naval engagement in the Copenhagen roadstead on April 2, 1801, the cannon-thunder of which made a powerful impression on the young


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Rh to embrace our Religion, but to Ue gentle Methods. Is it not allowed in the Church of Chrit to make Ue of Chritian Dicipline at Times and Seaons, with Prudence and due Moderation; which is a powerful Means to advance the Growth of Piety and Devotion? How much more is it neceary to apply the ame Means here to grub up an untilled Ground, where a new Church is to be planted? Ele it would be the ame Imprudence, as to throw good Seed into Thorns and Briars, which would choak the Seed.

But as the chief Fruit of our Labours and Teaching is to be expected from the growing Youth, o if ome good Regulations and mall Foundations were laid for the bringing up a Number of Children in the Chritian Faith and Piety, no doubt God would proper it; inamuch as thee poor Children and growing Youth are very tractable and teachable, and good natured; hewing no Inclination or Propenity to Vice. Neither do they want Capacity; for I have found, they will take any thing as oon as any of our own Children. Now, if thee Gifts or


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 own computers. Netcom’s local server makes available its postings to a group of Usenet servers, which do the same for other servers until all Usenet sites worldwide have obtained access to the postings, which takes a matter of hours. Francis Decl. ¶5.

Unlike some other large on-line service providers, such as CompuServe, America Online, and Prodigy, Netcom does not create or control the content of the information available to its subscribers. It also does not monitor messages as they are posted. It has, however, suspended the accounts of subscribers who violated its terms and conditions, such as where they had commercial software in their posted files. Netcom admits that, although not currently configured to do this, it may be possible to reprogram its system to screen postings containing particular words or coming from particular individuals. Netcom, however, took no action after it was told by plaintiffs that Erlich had posted messages through Netcom’s system that violated plaintiffs’ copyrights, instead claiming that it could not shut out Erlich without shutting out all of the users of Klemesrud’s BBS.

The Ninth Circuit addressed the question of what constitutes infringement in the context of storage of digital information in a computer’s random access memory (“RAM”). MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir.1993). In MAI, the Ninth Circuit upheld a finding of copyright infringement where a repair person, who was not authorized to use the computer owner’s licensed operating system software, turned on the computer, thus loading the operating system into RAM for long enough to check an “error log.” Id. at 518–19. Copyright protection subsists in original works of authorship “fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102 (emphasis added). A work is “fixed” when its “embodiment in a copy … is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” Id. § 101. MAI established that the loading of data from a storage device into RAM constitutes copying because that data stays in RAM long enough for it to be perceived. MAI Systems, 991 F.2d at 518.

In the present case, there is no question after MAI that “copies” were created, as Erlich’s act of sending a message to a.r.s. caused reproductions of portions of plaintiffs’ works on both Klemesrud’s and Netcom’s storage devices. Even though the messages remained on their systems for at most eleven days, they were sufficiently “fixed” to constitute recognizable copies under the Copyright Act. See Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights 66 (1995) (“IITF Report”).

Accepting that copies were made, Netcom argues that Erlich, and not Netcom, is directly liable for the copying. MAI did not address the question raised in this case: whether possessors of computers are liable for incidental copies automatically made on their computers using their software as part of a process initiated by a third party. Netcom correctly distinguishes MAI on the ground that Netcom did not take any affirmative action that directly resulted in copying plaintiffs’ works other than by installing and maintaining a system whereby software automatically forwards messages received from subscribers onto the Usenet, and temporarily stores copies on its system. Netcom’s actions, to the extent that they created a copy of plaintiffs’ works, were necessary to having a working system for transmitting Usenet postings to and from the Internet. Unlike the defendants in MAI, neither Netcom nor Klemesrud initiated the copying. The defendants in MAI turned on their customers’ computers thereby creating temporary copies of the operating system, whereas Netcom’s and Klemesrud’s systems can operate without any human intervention. Thus, unlike MAI, the mere fact that Netcom’s system incidentally makes temporary copies


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214 or natural Talents were forwarded by the Gifts of Grace; who would quetion their Growth and Advancement in the Chritian Faith and Virtues, which would ripen to the full Harvet of eternal Happines? Good God, how eay a Thing would it be to help thee poor Wretches out of their Miery, if thoe that God has bleed with Wealth, were heavenly minded, and would be enible of the wretched Condition of their fellow Creatures, and contribute out of thir Abundance to the Founding of a School in thee Parts, and the providing of other mot neceary Things?

His Majety, out of his wonted mot glorious Zeal for the Growth and Advancement of the Church of Chrit, has mot graciouly provided, by a coniderable Sum of Money yearly et apart, for the Greenland Miionaries Entertainment, which Royal Bounty continues to this Day; for which Goodnes the mot gracious God will bles his Majety and all the Royal Hereditary Houe, and be their Reward for ever! But as a good deal of this Bounty Money mut be employed in


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 of plaintiffs’ works does not mean Netcom has caused the copying. The court believes that Netcom’s act of designing or implementing a system that automatically and uniformly creates temporary copies of all data sent through it is not unlike that of the owner of a copying machine who lets the public make copies with it. Netcom compares itself to a common carrier that merely acts as a passive conduit for information. In a sense, a Usenet server that forwards all messages acts like a common carrier, passively retransmitting every message that gets sent through it. Netcom would seem no more liable than the phone company for carrying an infringing facsimile transmission or storing an infringing audio recording on its voice mail. As Netcom’s counsel argued, holding such a server liable would be like holding the owner of the highway, or at least the operator of a toll booth, liable for the criminal activities that occur on its roads. Since other similar carriers of information are not liable for infringement, there is some basis for exempting Internet access providers from liability for infringement by their users. The IITF Report concluded that “[i]f an entity provided only the wires and conduits—such as the telephone company, it would have a good argument for an exemption if it was truly in the same position as a common carrier and could not control who or what was on its system.” IITF Report at 122. Here, perhaps, the analogy is not completely appropriate as Netcom does more than just “provide the wire and conduits.” Further, Internet providers are not natural monopolies that are bound to carry all the traffic that one wishes to pass through them, as with the usual common carrier. See id. at 122 n. 392 (citing Federal Communications Commission v. Midwest Video Corp., 440 U.S. 689, 701, 99 S.Ct. 1435, 1442, 59 L.Ed.2d 692 (1979)). Section 111 of the Copyright Act codifies the exemption for passive carriers who are otherwise liable for a secondary transmission. 3 Melville B. Nimmer & David Nimmer, § 12.04[B][3], at 12-99 (1995). However, the carrier must not have any direct or indirect control over the content or selection of the primary transmission. Id.; 17 U.S.C. § 111(a)(3). Cf. In any event, common carriers are granted statutory exemptions for liability that might otherwise exist. Here, Netcom does not fall under this statutory exemption, and thus faces the usual strict liability scheme that exists for copyright. Whether a new exemption should be carved out for online service providers is to be resolved by Congress, not the courts. Compare Comment, “Online Service Providers and Copyright Law: The Need for Change,” 1 197, 202 (1995) (citing recommendations of online service providers for amending the Copyright Act to create liability only where a “provider has ‘actual knowledge that a work that is being or has been transmitted onto, or stored on, its system is infringing,’ and has the ‘ability and authority’ to stop the transmission, and has, after a reasonable amount of time, allowed the infringing activity to continue’ ”” [sic]) with TITF Report at 122 (recommending that Congress not exempt service providers from strict liability for direct infringements). Although some of the people using the machine may directly infringe copyrights, courts analyze the machine owner’s liability under the rubric of contributory infringement, not direct infringement. See, e.g., RCA Records v. All-Fast Systems, Inc., 594 F.Supp. 335 (S.D.N.Y.1984); 3 Melville B. Nimmer & David Nimmer, § 12.04[A][2][b], at 12-78 to -79 (1995) (“”); Elkin-Koren, supra, at 363 (arguing that “contributory infringement is more appropriate for dealing with BBS liability, first, because it focuses attention on the BBS-users relationship and the way imposing liability on BBS operators may shape this relationship, and second because it better addresses the complexity of the relationship between BBS operators and subscribers”). Plaintiffs’ theory would create many separate acts of infringement and, carried to its natural extreme, would lead to unreasonable liability. It is not difficult to conclude that Erlich infringes by copying a protected work onto his computer and by posting a message to a newsgroup. However, plaintiffs’ theory further implicates a Usenet server that carries Erlich’s message to other servers regardless of whether that server acts without any human intervention beyond the initial setting up of the system. It would also result in liability for every single Usenet server in the worldwide link of computers transmitting Erlich’s message to every other computer. These parties, who are liable under plaintiffs’ theory, do no more