Censure the Tree for Its Rotten Apple: Attributing Liability to Parents for the Copyright Infringement of Their Minor Children

AuthorChad Silver
PositionSenior Staffer, Cardozo Public Law
Pages977-1016

Page 977

    Due to circumstances beyond the author's control, there was a lengthy period between the time the note was accepted for publication and the date of publication. The thesis and ideas expressed in this note remain novel and valuable, but the author encourages readers to view the note in the context of a field of law that is rapidly developing.

    Chad Silver is Senior Staffer, Cardozo Public Law, Policy, and Ethics Journal, J.D., Jun. 2005. The author would like to thank the members of the CPLPEJ whose direction and effort contributed to the publication of this Note, as well as Professor Susan Crawford. He also wishes to offer a special thanks to his parents and his sister, for their unceasing love and support.
Introduction

Seventeen years old and he just got his driver's license. He's gallivanting around town in his brand new Porsche blasting the hottest new tunes out of his top-of-the-line Bose stereo system. And everyone wants to know: where exactly did he get those songs? Unfortunately, the answer is that he illegally downloaded them off of the Internet.

Illegally downloading music is a common practice among children and one more serious than it may initially appear. As a result of illegal electronic file sharing, the recording industry has been experiencing a continuous decline in sales; between 2001 and 2002, overall sales dropped almost H.2%.1

While the majority of the public has had little concern for the financial well-being of music conglomerates like Sony and Columbia Records, the industry will lose the necessary resources essential to funding and developing new artists without the incentives created by the protection of copyrights.2Additionally, illegal electronic file sharing "threatens the jobs of tens of thousands of less celebrated people in the music industry, from engineers to technicians and warehouse workersPage 978 and record store clerks."3Legislative and litigation solutions to the economic problem caused by illegal downloading have slowly started amending the problems that make copyrighted content illegally accessible to users online.4As a result of such efforts, the hard decline in sales is beginning to soften.5

One opening left exposed in the industry's new armor is that minors may continue illegally downloading songs without the threat of direct liability. According to "some estimates, teenagers make up half of the 60 million people who use [online] file-swapping services" to illegally trade music.6Most minors are unable to pay the damages for which they may be liable as a result of their infringing activity. Because many children are allowed to download music illegally without consequence, the recording industry is left without a meaningful remedy and with nothing to deter the activity. Since teenagers comprise a large portion of the market for music,7depriving copyright owners of a viable source of recourse poses a distinct threat to the music industry. Although there is no panacea for this problem, by implementing parental liability for copyright infringements perpetrated by minor children, copyright owners would be provided with a possible remedy for such violations.

Section I of this note presents an overview of the current legal environment surrounding copyright infringement on the Internet. Section II offers an analysis of the legal liability of minors and their parents.Page 979

Section III examines the corresponding theories of copyright infringement and parental liability for minor children. Finally, I propose that minors could be deterred from illegal downloading by the implementation of incentives for parents to prevent their children from engaging in such activity.

I Copyright Infringement on the Internet

With the development of simplified methods of transferring digital information over the Internet, a global dilemma emerged concerning the illegal distribution and reproduction of copyrighted works. As new methods of file sharing continue to materialize, Congress and the federal judiciary continue to combat the free reign of online copyright infringers with new statutes and case law.8While a comprehensive discussion of the legitimacy of file sharing with regard to copyright infringement is beyond the scope of this note, an overview of the recent history surrounding the subject and the major players involved is essential to prepare a foundation.

A Digital Millennium Copyright Act

In 1996, the World Intellectual Property Organization (WIPO) drafted several treaties in a global effort to forestall the growing disregard for copyright laws.9In October 1998, the United States Congress adopted these treaties into law by passing the Digital Millennium Copyright Act (DMCA).10The DMCA was aimed at Internet service prov-Page 980 iders (ISPs)11in an attempt to block Web sites from providing infringing material.12

At the time, regulating ISPs appeared to be the best way to crack down on online copyright infringement because ISPs were the entities providing access to the copyrighted works.13In 1995, the Presidential National Intellectual Property Information Task Force drafted the "White Paper," which submitted several reasons for justifying ISP liability for the infringement of copyrights.14First, since tracking down the individuals who actually downloaded the songs was extremely difficult, the ISPs were the only parties accessible to law enforcement.15Second, ISPs generally received a financial benefit from providing the access to copyrighted material, thus the ISPs were in a reasonable position to pay damages. Third, because of their business relationship with the individual infringer, ISPs were in the best position to investigate and prevent infringing activity.16

Congress, however, acknowledged that holding ISPs liable for infringing activity in which the ISPs had taken no direct part, nor had any direct knowledge of, would be excessive. Thus, section 512 of the DMCA provides limitations on liability for ISPs.17Under those excep-Page 981 tions, ISPs are exempt from liability for monetary, injunctive, or other equitable relief for infringement by reason of the provider's transmitting, routing, or providing a connection for such material, or temporarily storing such material in the course of transmission, routing, or connection.18Under the DMCA, a subpoena can only be issued to an ISP that is engaged in storing (or caching) infringing material on its servers, not to an ISP acting merely as a conduit (or transmitter) for data transferred between two Internet users.19Therefore, a subpoena may not be issued to an ISP acting as a conduit for peer-to-peer file sharing, which does not involve the storage of infringing material on the ISP's server.

In general, ISPs remain exempt provided that the ISP lacks actual notice of any infringing content and has complied with the detailed "notice and take-down" procedure.20Furthermore, ISPs are fully immune from liability if "good faith" measures are taken to prevent illegal activity.21One way that ISPs may ensure immunity is by policing their systems for illegal content and by acting against those users who violate copyrights.22Although the law does not require an ISP to seek outPage 982 information regarding the existence of infringing content on its system, upon obtaining notice of the existence of infringing content ISP must expediently remove or disable access to such material.23Thus, if an ISP becomes aware of the existence of infringing material and does not take any action to prevent or remove the material from its system, the service provider may be held liable for third-party copyright infringement.

B Internet Backbone Providers

In August 2002, the Recording Industry Association of America (RIAA), though not itself a plaintiff, helped thirteen music companies file a lawsuit against multiple Internet backbone providers24for making copyrighted material accessible to customers through the Internet.25Defendants in the suit included AT&T and Sprint. The targeted Web site, Listen4ever.com, offered the ability to download entire albums from a central server without permission of the copyright owners.26The Web site operators took numerous steps to avoid detection, such as positioning the site on a server in China and providing questionable contact information.27The recording companies did not file suit against the Web site operators, instead they sued the parties with the deepest pockets: the companies connecting the servers transmitting the infringing files from the outlaw Web site.28Soon after the suit was filed, Lis-ten4ever.com voluntarily shut down operations.29As a result, the plain-Page 983 tiffs dropped the case, backing away from becoming the first copyright owners to test the provision of the DMCA that mandates ISPs block certain sites from end users.30

The Listen4ever.com case confirmed that for the time being copyright lawsuits will be litigated only between copyright owners and infringers: infrastructure players would be left...

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