Secondary Copyright Infringement
Those who do not directly infringe the copyright owner’s rights, but facilitate the infringement by others may be liable under theories of secondary liability. This an area of copyright law that is in flux and very complex. We provide a high-level summary of secondary liability but if you have more than a passing interest we recommend you review a wide variety of diverse views on the topic.
There are several theories by which a party can be liable for secondary liability:
Contributory infringement is based on a connection to the infringing activity. A party can be found liable for contributory infringement when that party knows of the infringing activity and induces, causes or materially contributes to it. Whether the party may be liable for contributory infringement may also depend on whether the party is providing services to the infringer and therefore has an ongoing relationship with the direct infringer or providing equipment or other instrumentalities to facilitate the direct infringement and does not have an ongoing relationship with the direct infringer. Further, the courts have developed a substantial noninfringing use test by which a party will generally not be found liable where the product is widely used for legitimate, unobjectionable purposes unless there is evidence of intent. Thus, when a party has more than mere knowledge that its product may be being used for infringing purposes, and instead is promoting infringement through its statements or actions, the substantial noninfringing use test will not immunize the party from liability.
Unlike contributory infringement, vicarious liability will depend on the relationship between the party and the direct infringer (as opposed to the party’s relationship to the infringement). To be found vicariously liable the party must have both the right and ability to supervise or control the infringing action of the direct infringer, and a direct financial benefit from the infringing activity. Actual knowledge of the infringement is irrelevant in a vicarious liability determination. The same services and equipment considerations that apply for contributory liability would also apply to vicarious liability.
The Supreme Court articulated a relatively new theory of secondary liability in the 2005 case of MGM Studios v Grokster. In that case the Court held that a party that distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. The Court limited the scope of this test, explaining that mere knowledge of infringing uses and actions incident to the distribution of the product (such as technical support) would not, standing alone, constitute inducement.
Proving willful blindness is more about satisfying the contributory infringement knowledge standard that its own free-standing theory of liability. A party is “willfully blind” when it is aware that there exists a high probability of an infringement but consciously avoids confirming instances of infringement. While willful blindness does not require an affirmative duty to monitor, it does mean that a party cannot “look the other way” in order to avoid confirming instances of infringement.
Service providers are potentially liable for the infringing acts of their users under one or more of these theories. In reality, however, they rarely are held liable due to a series of provisions in the copyright law that immunize service providers who prove to be good actors by taking immediate steps to combat their users’ online infringements. These provisions are set forth in the Digital Millennium Copyright Act (DMCA).
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