Don't shoot the messenger! Who's at fault when IP is pirated electronically? One pornographer's little list holds some important lessons for other victims of Internet theft.

The valiant efforts of former Vice President Al Gore aside, it's safe to say that the Internet would not be anywhere as big a phenomenon as it is today were it not for the driving force of pornography. But while the multi-billion-dollar smut industry may have helped push the growth of the web, it is also leading to some tricky intellectual property problems with implications for anyone who posts material online--from the most salacious to the most technical.

Take the case of California pornographer Norm Zada. Zada, whose "Perfect 10" website claims to offer subscribers the chance to peek at "the world's most beautiful natural women," believes that he is the victim of other website operators who steal his material and post it as their own--and has, for the past several years, been on a legal crusade to stop them. The only problem is, porn plagiarists are not always easy to track down and collect judgments from, so Zada and his attorneys have had to look elsewhere for compensation.

"Zada has been suing lots of people, including just about every intermediary he can think of, from search engines to credit card companies," says Wilmer Cutler Pickering Hale and Dorr Partner Thomas Olson. "And lately, he's been suing the big search engines such as Google and Yahoo, saying they should alter their search engines so that people won't get any information about the sites to which he objects."

While Zada's problem may seem obscure, the rulings that are coming out of California courts could have a major ripple effect across the Internet, says Olson. "The whole question here is one of blaming the messenger--a search engine--rather than the person doing the infringing" says the Washington, DC-based Olson, "And there's a big unresolved issue in the law about what you can do to intermediaries who touch an infringement and whether you can blame them for it."

The Supreme Court will soon be deciding a related question: Should a company that offers "peer-to-peer" software--Grokster--be held liable for the massive downloading of copyrighted material by users of the software? Of course, unlike search engines, which are designed for a vast range of entirely lawful uses, peer-to-peer software--starting with Napster--has a more checkered history.

Although Olson says that "from the proprietor's perspective, finding intermediaries is logical," when it comes to search engines, he draws an analogy to newspapers. "A search engine is just repotting what is going on out there," he says. "If a newspaper had a listing of all the movies playing in a town and some of them turned out to be pirated, well, it's not really their fault, is it?"

Of course, one can sympathize on some level with Zada, since data of any sort--whether it's images of movie stars, feature films or subscriber-only newsletters--is notoriously tough to guard on the Internet. "What you can do to protect your property really varies so much from industry to industry," notes Olson, who says that often there are software solutions that can protect copyright holders. "But if your copyright is infringed," he says, "go after the infringers or the intermediaries who are morally at fault--not at the neutral messengers."

James Morrow writes about technology, business and law from Sydney, Australia.