A person infringes when—without permission of the copyright owner—he reproduces the work, prepares a derivative work, distributes copies to the public, displays or performs the work, or imports the work into the United States. This is direct infringement—the person commits the act of infringement.
Direct infringement of copyright law is strict liability. Even if a defendant is not aware that expression is copyrighted, the defendant is still liable if he commits an infringing act. Lack of knowledge is no defense. However, there must be an element of volition or causation.
DMCA & ISP Safe Harbor
Among other things, the Digital Millennium Copyright Act (DMCA) provides a safe harbor for an internet service provider (ISP) that satisfies certain conditions. Conditions for immunity include a lack of knowledge (actual or constructive) of the infringing activity; an absence of a financial benefit directly attributable to the infringing activity; and an expeditious removal of infringing content upon notification.
Indirect infringement occurs where a defendant induces, controls, or contributes toward another’s act of direct infringement. The defendant may be indirectly liable under the doctrines of either vicarious infringement or contributory infringement. There must be an act of direct infringement for there to be indirect infringement.
A defendant is vicariously liable where: (1) he has the right and the ability to supervise the direct infringer; and (2) he reaps a direct financial benefit from the infringement.
A defendant is contributorily liable where: (1) he has knowledge of the infringing activity; and (2) he induces or materially contributes toward the infringing activity.
Staple Article of Commerce
Where a claim for contributory infringement is based solely on the act of selling copy equipment, the staple-article-of-commerce defense precludes a finding of infringement if the equipment is capable of substantial non-infringing uses.
Where evidence exists of a clear expression or affirmative steps taken to facilitate infringement, the actor may be liable for distributing a device with the intent to promote its use to infringe copyright. An underlying act of infringement must exist. The staple-article-of-commerce defense does not apply where inducement has occurred.
Paula owns an internet website. As part of her website, she allows people to post content to her website for a fee. Theodore posts a copy of a sports article to Paula’s site, and the article infringes the copyright of Blake. Paula did not realize that Theodore was going to post the infringing article. Blake sues Paula for infringement.
Question: Is Paula liable as a direct infringer?
Lon owns and operates a copy shop. Jane brings a photograph to Lon for him to copy. Lon asks her if she is the copyright owner. Jane assures him that she is the copyright owner and that she took the photograph. That assurance, however, turns out to be completely false. The copyright owner is a man named Abe. Lon does not know this, though, and so he goes ahead and makes a copy for Jane.
Question: Is Lon liable for copyright infringement?
Pat owns a department store. She rents out space in her store to Jeremy for the purpose of selling music. Jeremy sells infringing copies of music. Pat does not know that the music he is selling infringes. Pat receives 10% of all of Jeremy’s gross sales.
Question: Has Pat infringed the copyright on the music that Jeremy is selling?
Milton manufactures and sells 3-D printing devices. With these devices, a person can make a replica of a physical object. Dolly is a potential customer. She asks Milton if the device could be used to replicate a Disney mini-figure. Milton responds that it is capable of that, but that she should not because that would be copyright infringement. Dolly informs Milton that she does not care about copyright law, and with that, she purchases the device from Milton. Dolly then uses the device to copy Disney mini-figures.
Question: Has Milton infringed Disney’s copyrights in its mini-figures?
Tad receives an email with an attachment from his friend, Amy. The attachment is a short story that Amy has written. In the email, she asks Tad to review it for her; Amy tells him not to forward it to anyone else. Katie is another friend of Tad. Katie wants to read Amy’s story, but Amy will not let her. So Katie asks Tad to forward her the attachment. Tad does.
Question: Have either Tad or Katie infringed Amy’s copyright?
Answer to Question 1
Likely not. As a website owner, Paula has set up a system that requires automatic copying. With respect to the content that Theodore has posted, Paula lacks the volition requisite to have been responsible for the public display and copying of the infringing material. She did not cause the public display or copying. Although direct infringement holds copiers strictly liable, there must still be an element of volition or causation. That element is lacking in Paula’s situation.
Note that the DMCA safe harbor provision would not apply here because Paula receives a direct financial benefit (she charges a fee) from the posting of the infringing content.
Answer to Question 2
Yes. Lon has made an unauthorized reproduction of the photograph, infringing the right of reproduction. He commits the act with volition. The fact that Lon believes that he has permission from the copyright owner, when in fact he does not have permission, is of no relevance. Copyright is strict liability so he is liable for his act of infringement.
Answer to Question 3
Yes. Pat has indirectly infringed under the doctrine of vicarious infringement. As the owner of the department store, she has the right and the ability to control Jeremy’s conduct. She also receives a direct financial benefit—a 10% royalty—from Jeremy’s infringing distributions.
Answer to Question 4
No. If not for the staple-article-of-commerce doctrine, Milton would be committing contributory infringement. Milton knows of Dolly’s direct infringement and by supplying her the device, he makes a material contribution towards her infringing act. However, the claim against Milton is based solely on his act of selling the copying equipment. As a result, Milton is excused from infringement if he can show that the 3-D printing device is capable of substantial non-infringing uses. Given that the device could be used to copy works that are authorized or in the public domain, Milton can likely make this showing.
Note that Milton did not induce her infringement. He took no steps to facilitate it, even telling Dolly that she should not use the device to infringe. This fact is important because it shows that Milton is not liable under the inducement rule.
Answer to Question 5
Both Tad and Katie have infringed Amy’s copyright. In forwarding the email to Katie, Tad has reproduced Amy’s story (without permission). Tad has infringed Amy’s right of reproduction.
Katie is liable for infringement because she has induced Tad to infringe. Presumably Katie knows that Amy has not authorized Tad to send Katie a copy because Amy herself has refused to give Katie a copy. So by asking Tad to send her the attachment, Katie is facilitating Tad’s act of infringement. She has knowledge and she induces. She is liable as a contributory infringer.