Copyright Liability for Those Who Provide the Means of Infringement: in Light of the Riaa Lawsuits, Who Is at Risk for the Infringing Acts of Others?

• Citation: Vol. 4 No. 3
• Publication year: 2008

Shidler Journal of Law, Commerce & Technology Volume 4, Issue 3 Winter 2008

Intellectual Property

Cite as: Karen Horowitz, Copyright Liability for Those Who Provide the Means of Infringement: In light of the RIAA lawsuits, who is at risk for the infringing acts of others?, 4 Shidler J. L. Com. & Tech. 8 (2/25/2008) at `http://www.lctjournal.washington.edu/Vol4/a08Horowitz.html'

Copyright Liability for Those Who Provide the Means of Infringement: In light of the RIAA lawsuits, who is at risk for the infringing acts of others?

Karen Horowitz1

©Karen Horowitz

Abstract

To date, the Recording Industry Association of America (RIAA) has become increasingly tough on the illegal downloading of copyrighted materials. In light of the increased prevalence of suits against minors or persons with little ability to pay, individuals or institutions that provide the means for the infringing activities, such as guardians or network owners (including, for example, the owner of an unsecured home network or the owner of an Internet cafS), need to be aware of the potential liability they might face. To place liability upon an individual or institution providing Internet access, a plaintiff could file suit for indirect copyright infringement under the doctrines of vicarious liability, contributory infringement, or inducement. Alternatively, to receive damages from the guardian of a minor child, the plaintiff could file suit against the minor child and attempt to satisfy any judgment from that claim through state parental liability statutes. This Article will discuss these approaches to liability and the risks facing these classes of actors.

Table of Contents

Introduction Vicarious Liability Control Financial Benefit Contributory Infringement Material Contribution Knowledge Inducement State Parental Liability Applicability to Copyright Infringement PreemptionDigital Millennium Copyright Act Safe Harbor Limitations to the Safe Harbor Provisions Conclusion

Introduction

[1] As of June 2006, the Recording Industry Association of America (RIAA) had brought suit against 17,587 individuals.2 This group includes Vickey Sims, the mother of a teenager, Nicole Phillips, who downloaded 1,200 MP3s by artists such as George Strait and Kirk Franklin.3 Although Sims "does not even know how to download a song," the RIAA is seeking a $75,000 judgment against her.4 The group of 17,587 individuals also includes Marie Lindor, a woman who does not even own a computer, but left an unsecured, unencrypted wireless router operating in her apartment.5 These claims raise the issue of whether an individual or institution, such as the owner of an unsecured network or of an Internet cafSor the guardian of a minor child, that did not directly engage in any infringing activity, may be held liable under existing law.6 Because the guardians of minor children are so often in the position of providing the means through which another individual engages in copyright infringement, examining the ways in which a copyright holder can extend liability to guardians serves to illustrate the manner in which liability could be placed on other network owners.

[2] A record company could file suit for indirect copyright infringement under the doctrines of vicarious liability, contributory infringement, or inducement if it wanted to place liability upon either a guardian for the alleged infringing activities of a child, an Internet cafo owner for the activities of a customer, or a network owner for the activities of a user.7 Although this would not permit the record company to reach the network owner or Internet cafSowner directly, the record company could alternatively file suit against the minor child and attempt to satisfy any judgment from that claim through state parental liability statutes. The merits of these claims are highly dependent upon the specific facts involved. In the typical file-sharing cases, where the individual or institution providing the means for the infringement is unaware of the infringing activity, there is little risk of liability. However, where there is tacit approval or encouragement of the infringing action, indirect liability could possibly be found. This Article will discuss these approaches to indirect liability and these classes of actors in turn.

Vicarious Liability

[3] Vicarious copyright liability is found when the defendant has the right and ability to control the infringing activity, as well as a direct financial interest in the exploitation of copyrighted materials.8 Each of these elements presents a unique obstacle to indirect liability when considered in the context of a network owner or a guardian.

Control

[4] First, to be held accountable under a theory of vicarious copyright liability, the network owner or guardian must have the ability to control the actions of the direct infringer.9 It appears that to be held vicariously liable, the network owner or guardian must have "the practical, rather than the strictly legal, ability to control the activities of the direct infringer."10 However, in some cases, legal authority over the infringing actor has been held sufficient to meet the control requirement. For example, the Ninth Circuit, in Fonovisa v. Cherry Auction, held that the operator of a swap meet, who had a contractual right to exclude a vendor for any reason, possessed the control required to establish vicarious liability.11 In Davis v. E. I. DuPont de Nemours & Co., the sponsor of a television program was also held vicariously liable for failing to exercise its contractual right to review scripts so as to prevent copyright violations from occurring.12

[5] Conversely, particularly where the exercise of legal authority would be impracticable, other courts have declined to hold that it is sufficient to establish the control element of vicarious liability.13 For example, in Adobe Systems, Inc. v. Canus Productions, Inc., a California federal district court found that the ability of the landlord to control the crowds and the flow of traffic into a trade show, or to respond to theft or vendor disputes within the trade show complex, was not equivalent to the practical ability to police the content of vendors' booths.14 In a similar case, Bevan v. Columbia Broadcasting System, Inc., the sponsor of a television program was not held vicariously liable for copyright infringement even though he possessed the contractual right to request alterations of the script prior to filming.15

[6] In the case of a guardian with an infringing child, it may be very difficult for the plaintiff to demonstrate that the guardian possessed the requisite level of control. The guardian's computer expertise, the time, place, and manner in which the infringing activities occurred, and other factual considerations will certainly be at issue in determining whether this element of liability has been met.16 For example, in situations where the guardian has no computer knowledge and the computer is solely used by the minor child, it seems implausible that a court would find that the guardian had control over the minor child's infringing activities. As the guardian's computer expertise and involvement in the child's use of the computer increases, control is more likely to be found. This point was demonstrated in Elektra Entertainment Group, Inc. v. Santangelo, where the court denied the defendant's motion to dismiss the plaintiffs' direct infringement claim against her, but expressed skepticism that "an Internet-illiterate parent, who does not know Kazaa from a kazoo," could be held liable for copyright infringement committed by a child who downloads music over the Internet without the parent's knowledge or permission but using the parent's Internet account.17

[7] More sophisticated network owners, however, should be aware that they could easily be found to have control over the activities of the direct infringer. While a home wifi operator may be found to have no more control than a typical guardian, in the case of an Internet cafSowner, for example, a certain degree of computer expertise may be presumed. Moreover, by taking steps to secure the network or to prevent access to certain known file-sharing websites, an ability that a sophisticated network owner is more likely to possess than a guardian or a home wifi operator, the network owner would be able to prevent the infringing activities in most cases.

Financial Benefit

[8] The defendant network owner or guardian must also receive a financial benefit from the infringing activity in order to be held accountable under vicarious copyright liability.18 To satisfy this element, there must be a "causal relationship between the infringing activity and any financial benefit a defendant reaps."19 Accordingly, in Roy Export Establishment Co. v. Trustees of Columbia University, the university was not found...