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Copyright Infringement 101

March 17, 2010 by · Comments Off
Filed under: Business, Copyright Articles, law 

Knowing what exactly constitutes copyright infringement is not always easy. Vendors selling fake CHANEL bags on the street are fairly obvious infringers, but the woman in the neighborhood that makes copies of her favorite MARTHA STEWART cookbook recipes and distributes them to her neighbors is not so obvious. The second case is technically copyright infringement, but would a court really punish a woman for wanting to share a few recipes? The answer is most likely not, but there are other forms of indirect infringement that come with legal penalties, and the differences between getting a penalty and escaping prosecution are not always very clear-cut.

Here is a short guide to the three forms of copyright infringement and some cases that illustrate their characteristics and potential penalties:

Direct Liability

Direct Liability is what most people imagine when they think about copyright infringement. It is defined as any unauthorized use of a copyrighted work in violation of the copyright owner’s rights. In order for a copyright owner to prove direct liability copyright infringement, he or she must first prove ownership of a currently valid copyright and then prove that the infringer had knowledge of the copyright and still copied constituent original elements of the copyrighted work. The civil suit claiming infringement must be started within three years of the infringing actions occurring.

What constitutes copying constituent original elements of a copyrighted work? The most common examples are ones such as the CHANEL purse knock-offs mentioned above. Any vendor or individual that manufactures a product that is substantially similar to a copyrighted product and intentionally made to look like a copyrighted product is subject to direct liability infringement penalties. An alternate example was found in the case Mannion v. Coors Brewing Co. (377 F. Supp. 2d 444, S.D.N.Y. 2005). The case examined the copyrightability of photographs and determined that photographs possess three forms of originality that may be subject to copyright protection—their rendition, their timing, and the creation of their subject matter. If these three elements in the offending photograph are substantially similar to the copyrighted photograph then direct liability copyright infringement will have occurred. In this case, the photograph in question was found to be original, but it set a precedent for copyright protection of the visual arts.

Secondary Liability

When direct copyright infringement has occurred, any individuals or organizations that have assisted in the infringement may be found liable for secondary infringement. There are two types of secondary liability—contributory and vicarious—and a person may be found guilty of one, or both.

Contributory Infringement

You may be found liable for contributory infringement if you had knowledge of the direct infringement of the copyrighted material and yet knowingly encouraged or assisted in the infringement. The most well-known case involving contributory infringement is A&M Records v. Napster, Inc. (239 F.3d 1004, 9th Cir. 2001). In this case, the Ninth Circuit Court of Appeals considered the issue of peer-to-peer file-sharing and used contributory infringement to hold Napster liable for the millions of illegal downloads made by Napster users. While users were liable for direct infringement, Napster itself was held liable for both contributory and vicarious infringement both because of their knowledge that the songs were copyrighted material and because the software contained a central indexing system that Napster controlled.

Vicarious Infringement

Though Napster was held liable for both contributory and vicarious infringement, individuals may also be only held liable for vicarious infringement. Vicarious infringement is often unintentional; however, you may be held liable for this type of copyright infringement if you had the right and ability to control the infringement and derived a financial benefit from the infringement.

For example, in a scenario that is being played out in several copyright infringement suits against the online auction website eBay, eBay could or could not be held liable for the selling of infringing goods on its website. Though eBay does not specifically regulate the materials sold on its website unless tipped off by the owners of the copyrighted material about the infringement, it could still be held liable for vicarious infringement if it is determined that eBay did not take sufficient measures to control the selling of “fake” goods on its website. Because eBay earns a commission on the goods sold through the online auction site, it is possible that the company could indeed be held liable though it may not have had direct knowledge of the copyright infringement. The overall verdict in eBay’s case is still up in the air, as some courts have found eBay guilty of secondary infringement while others have asserted that the site takes reasonable measures to prevent the selling of infringing goods and thus is not liable.

Do you know anyone accused of copyright infringment for selling online?  If so, please ask them to answer the below survey.  Your voice matters.