Magazine article Information Today

The Risks of Indirect Infringement

Magazine article Information Today

The Risks of Indirect Infringement

Article excerpt

When is an intellectual property infringer not an infringer? When it is a dance hall, a VCR manufacturer, a peer-to-peer software developer, a web-hosting service, or a major research university. Or, if Congress gets its way, it is Google.

In each of these situations, the parties involved were not actually engaged in copyright or trademark infringement, but they were found to have committed--or at least were sued for--copyright infringement under a legal principle known as indirect infringement. Indirect infringement, sometimes referred to as secondary infringement, applies when a person or organization is found to have induced another to infringe or to have knowingly benefited from the infringing actions of another. If one or the other of these situations has happened, the person or organization can be liable for copyright violations to the same degree--and potentially with the same or higher damages--as the person who actually did the copying.

Indirect infringement is a longtime fixture of copyright law; some of the first cases arose in the 1920s and dealt with playing copyrighted music in dance halls. But the issue seems to have taken on new force and importance in the digital copyright arena. Several recent court cases, as well as a recent hearing before Congress, suggest that it may be becoming easier for a party to be found to be an indirect infringer. This could have significant consequences for several different players in the information industry.

Indirect infringement generally comes in two varieties: vicarious liability and contributory liability.

Vicarious liability is a common legal doctrine. It holds that superiors can be held legally responsible for the acts of those under their control. A classic noncopyright example is that FedEx can be held legally responsible for accidents caused by its drivers. In intellectual property law, vicarious infringement liability can apply not only to employers for the infringing activities of their employees but also to parties who profit from the infringing acts of others, provided that the party has some ability to control or prevent the infringement.


Contributory liability is a bit more complicated and applies to one who contributes to the infringing acts of another. The contributions must be material, or central, to the actual infringement, and the contributor must be aware of the actual infringing activities. Parties can also be guilty of contributory copyright infringement when they induce others to infringe on copyrights. Peer-to-peer file sharing services such as Napster, Grokster, and LimeWire have all been found liable for this form of indirect infringement.

GSU's Ongoing Lawsuit

The ongoing Georgia State University (GSU) copyright infringement lawsuit illustrates the overlapping challenges of both forms of indirect infringement. In this case involving GSU's course web and e-reserve services, GSU was charged with directly infringing copyright through those services with both vicarious and contributory infringement. The vicarious claim was based on the employer-employee relationship between GSU and the faculty and staff members who were copying materials. The contributory claim was that GSU encouraged and induced faculty and staff to do illegal copying.

While GSU claimed that any copying done was a fair use, it also denied that it was directly, vicariously, or contributorily liable for the acts of staff and faculty. …

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