Those looking to protect patents, trademarks, or copyrights, might not be aware of contributory copyright infringement. However, to be fully protected, that’s a term one must become familiar with.
What Is Contributory Copyright Infringement?
Here is a simple example that illustrates what contributory copyright infringement is. Let’s say that a YouTube user uploads a Lady Gaga video on their channel. Lady Gaga contacts YouTube and asks for the video to be taken down. If YouTube complies and takes down the video, all is well. However, if YouTube refuses, they are committing contributory copyright infringement.
Contributory copyright infringement is a means of holding a party liable for copyright infringement even if they didn’t directly commit it. For a person or entity to be held liable for contributory infringement, it must meet two criteria:
- They must have knowledge of direct infringement and
- They must materially contribute to the infringement
There are two possible scenarios when a contributory copyright infringement can occur:
- A person or entity assists in copyright infringement through their actions or
- They facilitate the infringement by providing certain means such as machinery or technology
Contributory Copyright Infringement vs Vicarious Liability
Contributory copyright infringement is sometimes mistaken for vicarious liability. Although both are a form of secondary liability for copyright infringement, there are differences between the two terms.
Requirements for vicarious liability are:
- The party had the right to control the infringing activity; and
- They receive a financial or commercial benefit from the infringement
In addition to that, a party can be held liable even if they had no intent or knowledge of committing copyright infringement. An example of vicarious liability is the landmark case of A&M Records against Napster. In this case, the file-sharing service Napster was held liable for both contributory copyright infringement and vicarious liability even though the company itself did not engage in infringing activities.
Responsibilities of Tech Companies When Dealing With Copyright Infringement
Companies like YouTube can be held liable for contributory copyright infringement even though they did not commit the infringing activities themselves. However, the Digital Millennium Copyright Act’s Title II protects online service providers and tech companies from secondary liability as long as they take appropriate action.
This title is known as Online Copyright Infringement Liability Limitation Act. It creates a safe harbor for online service providers such as internet service providers by exempting them from being liable for copyright infringement provided they abide by certain rules. Those rules stipulate that they must either take down the content whose copyright was infringed upon or limit access to it on their network if they receive a notice about it.
What Role Do Online Service Providers Have in Contributory Copyright Infringement?
According to the necessary criteria for contributory copyright infringement liability, a party can be held liable if they provide means such as machinery or technology that facilitates the infringement.
This means that companies like internet service providers and telecommunication operators can be held liable because they provided a service that allowed another party to violate someone else’s copyright.
An example of this is the Religious Technology Center v. Netcom Online Communication Services, Inc., 907 F.Supp. 1361 (N.D. Cal. 1995) case. In that case, the court had to decide whether Netcom could be held liable for content posted by one of its clients.
The content in question contained copies of Church of Scientology documents. The Church claimed that their copyright was infringed upon. The court ruled the following:
- Netcom could not be held directly liable for the material posted by the client since it was the client who uploaded the documents
- Netcom could not be held vicariously liable since they didn’t profit from the infringing activity
- They refused to rule out the possibility of Netcom being liable for contributory infringement
While the last decision left room for further trial, the case was settled.
Similarly, contributory copyright infringement is often associated with peer-to-peer sharing services such as Napster, Aimster, and others.
However, the aforementioned Digital Millennium Copyright Act limits the liability of ISPs and other online service providers provided they follow the same rules stated above.
Sidespin Group Can Help
At Sidespin Group, we can help with contributory copyright infringement litigations, which usually come down to technical matters in networking technology. Please get in touch with our litigation experts for consultation and advice on contributory copyright infringement and trade secret misappropriation.