Secondary Liability in U.S. Copyright Law
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1 Secondary Liability in U.S. Copyright Law Oliver Metzger, United States Copyright Office Patent, Trademark, and Copyright - Law and Policy United States Patent and Trademark Office Global Intellectual Property Academy Johannesburg, South Africa, August 27-29, 2007
2 Secondary Liability Generally
3 Primary Liability The owner of the copyright has the exclusive right to do or to authorize: Reproduction Preparation of derivative works Distribution of copies to the public For some types of works: Public performance For some types of works: Public display
4 Problems
5 Problems 1. A landlord who leases, for a fixed rate and without any right to supervise the tenant, a building to a tenant who commits infringement there.
6 Problems 1. A landlord who leases, for a fixed rate and without any right to supervise the tenant, a building to a tenant who commits infringement there. 2. A restaurant or dance hall at which musicians infringe musical works.
7 Problems 1. A landlord who leases, for a fixed rate and without any right to supervise the tenant, a building to a tenant who commits infringement there. 2. A restaurant or dance hall at which musicians infringe musical works. 3. A store that has a record concession that sells infringing recordings.
8 Problems 1. A landlord who leases, for a fixed rate and without any right to supervise the tenant, a building to a tenant who commits infringement there. 2. A restaurant or dance hall at which musicians infringe musical works. 3. A store that has a record concession that sells infringing recordings. 4. A bazaar that has a stall that sells infringing recordings.
9 Problems 1. A landlord who leases, for a fixed rate and without any right to supervise the tenant, a building to a tenant who commits infringement there. 2. A restaurant or dance hall at which musicians infringe musical works. 3. A store that has a record concession that sells infringing recordings. 4. A bazaar that has a stall that sells infringing recordings. 5. A management company that books musicians who infringe at concerts the company helped organize.
10 Vicarious Infringement Right and ability to control the infringement Direct financial interest in the infringement
11 Liable? 1. A landlord that leases, for a fixed rate and without any right to supervise the tenant, a building to a tenant who commits infringement there. 2. A restaurant or dance hall at which musicians infringe musical works. 3. A store that has a record concession that sells infringing recordings. 4. A bazaar that has a stall that sells infringing recordings. 5. A management company that books musicians who infringe at concerts the company helped organize.
12 Liable? 1. A landlord that leases, for a fixed rate and without any right to supervise the tenant, a building to a tenant who commits infringement there. NO 2. A restaurant or dance hall at which musicians infringe musical works. 3. A store that has a record concession that sells infringing recordings. 4. A bazaar that has a stall that sells infringing recordings. 5. A management company that books musicians who infringe at concerts the company helped organize.
13 Liable? 1. A landlord that leases, for a fixed rate and without any right to supervise the tenant, a building to a tenant who commits infringement there. NO 2. A restaurant or dance hall at which musicians infringe musical works. YES 3. A store that has a record concession that sells infringing recordings. 4. A bazaar that has a stall that sells infringing recordings. 5. A management company that books musicians who infringe at concerts the company helped organize.
14 Liable? 1. A landlord that leases, for a fixed rate and without any right to supervise the tenant, a building to a tenant who commits infringement there. NO 2. A restaurant or dance hall at which musicians infringe musical works. YES 3. A store that has a record concession that sells infringing recordings. YES 4. A bazaar that has a stall that sells infringing recordings. 5. A management company that books musicians who infringe at concerts the company helped organize.
15 Liable? 1. A landlord that leases, for a fixed rate and without any right to supervise the tenant, a building to a tenant who commits infringement there. NO 2. A restaurant or dance hall at which musicians infringe musical works. YES 3. A store that has a record concession that sells infringing recordings. YES 4. A bazaar that has a stall that sells infringing recordings. YES 5. A management company that books musicians who infringe at concerts the company helped organize.
16 Liable? 1. A landlord that leases, for a fixed rate and without any right to supervise the tenant, a building to a tenant who commits infringement there. NO 2. A restaurant or dance hall at which musicians infringe musical works. YES 3. A store that has a record concession that sells infringing recordings. YES 4. A bazaar that has a stall that sells infringing recordings. YES 5. A management company that books musicians who infringe at concerts the company helped organize. YES
17 More Problems
18 More Problems 1. Store that sells blank tapes, and loans prerecorded tapes and duplication equipment.
19 More Problems 1. Store that sells blank tapes, and loans prerecorded tapes and duplication equipment. 2. Advertising agency that places advertisements for infringing records with a radio station.
20 More Problems 1. Store that sells blank tapes, and loans prerecorded tapes and duplication equipment. 2. Advertising agency that places advertisements for infringing records with a radio station. 3. The radio station that broadcasts those advertisements.
21 More Problems 1. Store that sells blank tapes, and loans prerecorded tapes and duplication equipment. 2. Advertising agency that places advertisements for infringing records with a radio station. 3. The radio station that broadcasts those advertisements. 4. A bazaar that has a stall that sells infringing recordings.
22 Contributory Infringement Knowledge of infringing activity Material contribution to the infringing activity
23 Liable? 1. Store that sells blank tapes, and loans prerecorded tapes and duplication equipment. 2. Advertising agency that places advertisements for infringing records with a radio station. 3. The radio station that broadcasts those advertisements. 4. A bazaar that has a stall that sells infringing recordings.
24 Liable? 1. Store that sells blank tapes, and loans prerecorded tapes and duplication equipment. YES 2. Advertising agency that places advertisements for infringing records with a radio station. 3. The radio station that broadcasts those advertisements. 4. A bazaar that has a stall that sells infringing recordings.
25 Liable? 1. Store that sells blank tapes, and loans prerecorded tapes and duplication equipment. YES 2. Advertising agency that places advertisements for infringing records with a radio station. MAYBE 3. The radio station that broadcasts those advertisements. 4. A bazaar that has a stall that sells infringing recordings.
26 Liable? 1. Store that sells blank tapes, and loans prerecorded tapes and duplication equipment. YES 2. Advertising agency that places advertisements for infringing records with a radio station. MAYBE 3. The radio station that broadcasts those advertisements. MAYBE 4. A bazaar that has a stall that sells infringing recordings.
27 Liable? 1. Store that sells blank tapes, and loans prerecorded tapes and duplication equipment. YES 2. Advertising agency that places advertisements for infringing records with a radio station. MAYBE 3. The radio station that broadcasts those advertisements. MAYBE 4. A bazaar that has a stall that sells infringing recordings. YES
28 Secondary Liability for Internet Service Providers
29 RTC v. Netcom (1995) When a person merely sets up equipment that others use to infringe, the person must intend for, or cause, the infringement in some way for the person to be liable. But once the ISP has notice of infringement, it must take the infringing material down or it will be liable for contributory infringement.
30 Grokster (2005) One who 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.
31 Safe Harbors for ISP Activities Available only for certain activities Transitory communications System caching Hosting Information location tools Notice and take-down, and put-back-up No monetary damages for Infringement, by customer Take down (or put back up), by ISP Injunctions still possible
32 Emerging International Standards Liability, with exceptions Knowledge of infringing activity Including constructive knowledge But no obligation to monitor Financial benefit Inducement Business models based on infringement Statutory safe harbors
33 Questions?
34 Thank you! Oliver Metzger Attorney-Advisor Office of Policy and International Affairs U.S. Copyright Office
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