2. Context of Infringement
– Courts have formulated ways to answer the following questions:
– How much knowledge is needed before infringement can occur?
– How and when does aiding and abetting a copyright infringer also become infringing behavior?
– Usually a civil action with civil penalties
– Can rise to a criminal action where there is widespread, willful infringement
– Possible to face both a civil liability and a criminal char
– A strict liability statute
– Although the actor’s state of mind is relevant when damages are assessed
– A continuum of mens rea, from innocent infringement to knowing infringement to willful infringement
– Actus reus non facit reum nisi mens sit rea, which means "the act is not culpable unless the mind is guilty".
– Two types of infringement: direct and indirect
3. How Do You Know It’s Direct
Infringement?
– Direct infringement occurs when there is “(1) ownership of a valid copyright,
and (2) copying of constituent elements of the work that are original.” (Feist)
– Is there a valid copyright?
– Proved through registration, & other evidence.
– Copyright Office registration is prima facie evidence of a valid copyright
– Examples: Georgia State case, Point Break Live case
– Has the alleged infringer has exercised one or more of the exclusive rights of the
rights holder?
– Proved through a two-pronged test
4. How Do You Tell That the
Defendant Infringed?
– Opportunity to copy
– Did the defendant have access to the work?
– Was the work disseminated widely?
– Don’t have to have studied the work or intended to copy
– Substantial similarity
– Must disregard the elements that can’t be copyrighted
– Who can detect the copying?
– Different circuits have formulated different tests
– Intrinsic/extrinsic test, audience test, dissection/filtration test
5. Indirect Infringement:
Contributory Infringement
– Contributory infringement
– The infringer knows that the infringement is happening and induces, causes, or
contributes to the infringement.
– Example: Courts have found contributory infringement in cases where
companies built and provided peer-to-peer software that was used for illegal
file sharing.
– Note that contributory infringement differs from direct infringement in that the
infringer must have knowledge that what he or she is doing violates copyright
law.
6. Indirect Infringement: Vicarious
Infringement
– Vicarious infringement occurs when the alleged infringer has the ability to
control the copyright infringement in some way and receives a monetary
benefit from the infringement.
– Like direct infringement, liability can occur without actual knowledge that the
activity is infringing.
– Courts developed the idea of vicarious infringement in the context of dance
halls in the 1920s, where are the owners of the buildings could have required
musicians to seek public performance licenses but did not do so.
7. Defenses
– Fair use
– Other statutory defenses (face to face teaching, etc.)
– Plaintiff’s lack of standing
– Laches (excessive delay)
– Safe harbor from indirect infringement claims for ISPs and others through the
DMCA takedown process
8. Defenses for Librarians and
Libraries
– Not liable for unsupervised copying if notices are posted on machines (Section
108)
– The court shall remit statutory damages in any case where an infringer believed
and had reasonable grounds for believing that his or her use of the copyrighted
work was a fair use under section 107, if the infringer was: (i) an employee or
agent of a nonprofit educational institution, library, or archives acting within the
scope of his or her employment who, or such institution, library, or archives
itself, which infringed by reproducing the work in copies or phonorecords
9. Defenses for Librarians and
Libraries, cont.
– Am I liable if I’m sued for something arising out of my employment at the University? Do I need to hire an attorney?
– You could be, but the State offers the following protections. The North Carolina Defense of State Employees Act provides that an employee may
request legal representation by the Attorney General if he or she is sued for matters arising within the course and scope of University
employment. If the Attorney General consents to representation, the University is responsible for the first $500,000 of any judgment and, unless
covered by an exclusion, the Excess Liability Policy carried by the State at no charge to you would cover judgments up to $5,000,000 per
employee, $5,000,000 per occurrence, and $10,000,000 per annual aggregate. If you receive a notice that you are an individual defendant, please
contact any Office of University Counsel attorney for assistance.
– You probably do not have to hire your own attorney, nor should you. The North Carolina Defense of State Employees Act provides that an
employee may request legal representation by the Attorney General if he or she is sued for matters arising within the course and scope of
University employment. However, the Attorney General could decline to represent you if he or she determines that:
– The act or omission was not within the scope and course of your employment; or
– You acted or failed to act because of actual fraud, corruption, or actual malice; or
– The defense of the action or proceeding by the State would create a conflict of interest between the State and you; or
– The defense of the action or proceeding would not be in the best interests of the State.
– Under certain circumstances, the University may reimburse you for the costs of outside counsel if the Attorney General declines representation. If
you receive a notice that you are an individual defendant, please contact any of the attorneys in the Office of University Counsel for assistance.
– UNC Office of University Counsel. Frequently Asked Questions.
10. Defenses for Librarians and
Libraries, cont.
– Sovereign Immunity
– “Copyright owners have but one arrow left in their quiver to prevent or deter
infringement of their intellectual property rights by States. That arrow is injunctive
relief against particular employees of the State.” --Marybeth Peters, former Register
of Copyrights, in 2000, http://www.copyright.gov/docs/regstat72700.html
11. Remedies
– A requirement that the infringer pay the copyright holder for damages incurred
– The infringer may have to pay court costs and the other party’s attorney fees
– The court may issue an injunction requiring the infringer to stop the infringing
activity
– Fines can range from $200 to $150,000, depending on the willfulness of the
activity and other circumstances
– The court can impound infringing works
– In some situations, an infringer may go to jail
12. Award of Court Costs and
Attorney Fees
– In any civil action under this title, the court in its discretion may allow the
recovery of full costs by or against any party other than the United States or an
officer thereof. Except as otherwise provided by this title, the court may also
award a reasonable attorney’s fee to the prevailing party as part of the costs. --
17 USC 505
– Fogerty v. Fantasy
– Kirtsaeng redux
