Potential Liability of World Wide Web
Providers, Part II
By Eric S. Freibrun, Esq.
Last month’s article discussed some
potential areas of legal liability for operators of World Wide Web ("Web")
sites, especially as they involved the copying and transmission of someone else’s
copyrighted materials over the Internet.
The hypothetical discussed involved a Web
site operator making available for downloading the text of a journal known to be
copyrighted without the authorization of the journal’s publisher. Not going out on
too short a limb, I predicted that a court would likely find the Web site operator liable
for copyright infringement. The journal’s publisher, as owner of all copyrights,
would likely successfully argue that the Web site operator created illegal copies by (i)
scanning the hard copy of the journal into electronic form to reside on its server hard
drive; and (ii) having portions of the journal loaded into RAM each time someone requested
the journal from the Web site operator’s server. The copyright owner might also be
able to successfully argue that the Web site operator was liable for illegal distribution
of the infringing copies, given current caselaw -- even though the Copyright Act does not
specifically prohibit the unauthorized electronic transmission of infringing copies, but
the distribution of infringing copies "by sale or other transfer of ownership, or by
rental, lease or lending" (17 U.S.C. §106(3)).
So, what if you decide your own Web site
would benefit from including a link to the infringing journal materials residing on the
other guy’s server? Is this a colossally bad idea? Are you liable for copyright
infringement as well?
First, a few words on copyright law. The
author of a copyrighted work, or one to whom the author has assigned his or her rights,
such as an employer, has the exclusive right to copy, modify, distribute, and publicly
perform and display the work. These rights arise automatically upon creation of the work.
Registration of the work with the Copyright Office is not necessary to obtain copyright
protection. It is, however, a prerequisite to being awarded statutory damages against an
infringer. Statutory damages can be steep: up to $100,000 per infringed work if the
infringement was done in knowing violation of the law.
The Copyright Act not only provides for
direct liability for infringement, as would likely result from the first Web site operator
copying the journal articles as described above, but for contributory and vicarious
liability as well.
A contributory infringer has been defined
in numerous court decisions to be one who, with knowledge of the infringing activity,
induces, causes or materially contributes to the infringing conduct of another, often by
providing services or equipment that facilitate the direct infringement of the protected
work. To be found liable for contributory infringement, the alleged infringer must know or
have reason to know that its conduct may lead to an infringement.
Similarly, vicarious liability results
when the alleged infringer has the right and ability to control or supervise the
infringing activity of another and derives a financial benefit from the exploitation of
the copyrighted materials. Actual knowledge of the infringement is not a prerequisite for
vicarious liability. The law, in essence, punishes the vicarious infringer for sitting
idly by and benefiting from the infringement if it could have prevented it.
In our example, someone whose Web site
links to the first Web site containing the infringing journal materials arguably
facilitates the infringement of the publisher’s copyrights. The linking site provides
a means to connect users directly to the infringing copies of the journal materials on the
first site. But unless the publisher can prove that the operator of a linking site knew or
had reason to know that the journal materials on the first site were infringing copies,
there may be no contributory infringement liability. The operator of the linking site may
also escape vicarious liability for infringement unless the journal copyright owner can
successfully argue that the operator of the linking site financially benefited from the
link to the infringing journal materials on the first site, and had the ability to control
or supervise the infringing conduct of the first site’s operator. Proving the latter
point may be especially difficult.
There is no caselaw directly addressing
the issue of a Web site operator's liability for contributory or vicarious copyright
infringement for providing a link to infringing material on another site. Businesses
seeking to take advantage of the World Wide Web should obtain the advice of competent
legal counsel in deciding what materials they may display or link to on their sites - lest
they find themselves test cases for new law in the cyber age.
This article is provided for general
informational purposes only and does not constitute legal advice. Each factual situation
is different and requires specific analysis.
Attorney Eric Freibrun specializes in
Computer law and Intellectual Property protection, providing legal services to information
technology vendors and users. Tel.: 847-562-0099; Fax: 847-562-0033; E-mail: eric@freibrun.com.
Copyright © Eric S. Freibrun, Esq., Law Offices of Eric S. Freibrun, Ltd. All rights
reserved.
