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Beyond Direct Copying: Understanding Contributory Infringement in the Digital Age

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Manish Jindal

January 25, 2024

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Beyond Direct Copying: Understanding Contributory Infringement in the Digital Age

The unauthorised sharing and distribution of copyrighted material have become more intricate in the digital era due to the emergence of novel platforms and technologies.

One such complexity is contributory copyright infringement, a legal concept that holds parties accountable for facilitating or enabling copyright violations committed by others.

As a vital component of intellectual property law, understanding contributory copyright infringement is crucial for both content creators and those who may inadvertently aid in the infringement process.

This article delves into the intriguing world of contributory copyright violation, exploring its nuances, real-world examples, and the potential consequences for those involved.

What is Contributory Copyright Infringement?

Contributory copyright infringement happens when a party knowingly contributes to or induces another party’s direct infringement of a copyrighted work.

It is a secondary form of a breach that holds an individual or entity responsible for indirectly participating in the unauthorised use of copyrighted material.

Examples of contributory liability in copyright violation cases include:

  • A software developer who creates and distributes a file-sharing application knows that it will be used primarily to share copyrighted material without authorisation.
  • A website operator knowingly hosts and links to infringing content, making it easily accessible to users.
  • An internet service provider (ISP) is aware of infringing activities occurring on its network but fails to take reasonable steps to prevent the acts of infringement from continuing.

Primary Infringement vs. Contributory Infringement

Primary infringement refers to the direct violation of a copyright holder’s exclusive rights, while contributory infringement occurs when someone aids or facilitates the primary infringement.

In both cases, the infringing party can face legal consequences, but contributory violation specifically targets those who enable or support the violation of copyrighted material.

The Importance of Addressing Contributory Copyright Infringement in the Digital Age

Contributory copyright infringement matters for several reasons, as it plays a crucial role in protecting the interests of copyright holders and maintaining a fair and balanced creative ecosystem.

Here are some key reasons why it matters:

Upholding the rights of creators: Copyright holders invest time, effort, and resources into creating original works.

By addressing contributory infringement, the law ensures that those who facilitate or enable violation are held accountable, further safeguarding the rights of creators and encouraging creativity and innovation.

Preserving the value of copyrighted works: Unauthorised distribution and sharing of copyrighted content can devalue the original works.

Contributory copyright infringement helps maintain the value and integrity of these works by targeting those who support or enable infringing activities.

Promoting responsible behavior among intermediaries: Intermediaries, such as internet service providers (ISPs), online platforms, and search engines, play a significant role in how content is accessed and shared.

By holding intermediaries accountable for contributory infringement, the law encourages these entities to adopt responsible practices that protect copyright holders’ rights.

Discouraging illegal activities: Holding parties accountable for contributory copyright infringement serves as a deterrent against engaging in activities that facilitate or enable the violation of ownership rights, thus discouraging illegal activities related to copyrighted content.

Protecting the creative economy: Violation of copyright can have a negative impact on the creative economy, as it undermines the financial incentives for creators to produce new works.

Addressing contributory copyright infringement helps protect the creative economy by ensuring that those who contribute to copyright violations face legal consequences, which in turn supports a sustainable environment for creators to thrive.

Elements of Contributory Infringement

The elements of contributory copyright infringement are the key factors that must be present for a party to be held liable for indirectly participating in the unauthorised use of copyrighted material.

There are two main elements of contributory copyright infringement:

Knowledge of Infringing Activities

The accused party must have actual or constructive knowledge of the primary infringing activity.

Actual knowledge refers to the direct awareness of the breach, while constructive knowledge means that the person should have known about the violation, even if they were not explicitly aware of it.

In many cases, courts will consider whether the accused party had reason to have knowledge of infringement or willingly ignored clear signs of infringing activity.

Material Contribution

The accused party must have materially contributed to the primary infringement.

This means their actions facilitated or enabled the violation to occur, such as providing the necessary tools, resources, or support that allowed the direct infringer to violate the copyright holder’s exclusive rights.

Material contribution can take various forms, including providing a platform for sharing copyrighted material or offering technical assistance to foster violation of the exclusive rights of the owner.

Both elements must be present for a court to hold someone liable for contributory copyright infringement.

If either element is lacking, the accused party may not be found liable for this secondary form of violation.

Understanding Contributory Liability in Indian Law

Section 51 of the Copyright Act in India lays out the provisions regarding the violation of copyright.

Section 51(a)(i) outlines the conditions under which copyright infringement is considered to have occurred.

It states that a copyright is considered to have been violated when someone acts in a manner that is solely reserved for the owner of the copyright without first acquiring a license or in breach of a license.

Contributory infringement in Indian copyright law is grounded in Section 51(a)(ii).

It states that when someone ‘allows any place to be used for profit for communicating the work to the public, and such communication results in copyright violation unless they were unaware and had no reasonable grounds to believe that the public communication would infringe on copyright’, the copyright is also deemed to have been infringed.

Actions that support the primary infringements and those that amplify their impact are two different categories of secondary infringement.

Section 51(a)(ii) pertains to instances where someone assists in the primary infringement.

This section also provides the defense that can be employed by a defendant to avoid liability under this provision, namely that the defendant was unaware or had no reasonable grounds for believing that the public communication would constitute copyright violation.

Section 51(b) addresses scenarios in which the defendant’s actions amplify the consequences of an existing primary infringement.

According to Section 51(b) of the Copyright Act, selling, distributing, importing, or exhibiting an infringing copy of a copyrighted work in public for commercial purposes also constitutes copyright violation.

As a result, India’s legal framework for contributory infringement and secondary responsibility is established under Sections 51(a)(ii) and 51(b) of the aforementioned Act.

Safe Harbors for Internet Service Providers: Understanding the IT Act, 2000

Specific laws regarding the responsibilities of Internet Service Providers (ISPs) are included in the Information Technology Act of 2000, sometimes known as the IT Act.

These provisions establish ‘safe harbors’ for ISPs. Section 2(w) of the IT Act defines an ‘intermediary’ as a person who, on behalf of another, receives, stores, or transmits an electronic message or provides any service related to that message.

The broad definition under the Information Technology Act of 2000 encompasses almost every entity such as ISPs, search engines, and online service providers, allowing them to avail the safe harbor provisions.

An intermediary is exempt from liability under Section 79 of the IT Act for any information, data, or communication link that they offer or host on behalf of a third party.

However, to take advantage of the safe harbor provisions, an intermediary must meet certain conditions.

The intermediary’s role must be limited to providing access to a communication system, not initiating the transmission, selecting the receiver, or modifying the transmission.

Additionally, the intermediary should adhere to guidelines set forth by the Central Government.

The ‘IT (Intermediary Guidelines) Rules 2011’ outline the conditions an intermediary must meet to receive the protection of safe harbor provisions.

According to these guidelines, the intermediary must observe due diligence measures specified under Rule 3.

For example, the intermediary should remove any infringing material on its network within thirty-six hours of being notified of the violation.

Contributory Infringement Copyright Case of India

My Space Inc. vs Super Cassettes Industries Ltd: A Case Overview

December 2016: Delhi High Court Reversal

In December 2016, the Delhi HC overruled a previous single-judge bench verdict, asserting that intermediaries could not be held responsible for contributory copyright infringement without evidence of ‘actual knowledge.’

2008 Copyright Violation Lawsuit

T-Series (Super Cassettes) initiated a copyright breach lawsuit against MySpace in 2008 for hosting unlicensed infringing material.

MySpace was accused of profiting from T-Series’ copyrighted sound recordings through advertisements placed alongside the content.

Single Judge Verdict

The single judge found the defendant guilty of a violation under Section 51 of the Copyright Act, stating that the safe harbor provisions under Section 79 of the IT Act were not applicable to the defendant, as per Section 81 of the IT Act.

Actual Knowledge Requirement

The court maintained that actual knowledge was necessary for an intermediary to be held accountable for infringing.

Before the defendant could be said to have known about the specific infringing material, the plaintiff had to identify it.

Delhi High Court Decision: Overturning the Single Judge Verdict

The Delhi High Court overturned the single-judge bench’s decision in December 2016, saying that actual knowledge had to be proven before an intermediary could be held accountable for contributing to a breach of copyright.

Safe Harbor under Section 79 of the IT Act

The Delhi High Court later asserted that Section 79 takes precedence over any other law, including the Copyright Act, and any limitations on safe harbor provisions must be considered within the scope of Section 79.

The IT Act and the Copyright Act should be interpreted harmoniously, as they complement each other.

MySpace’s Limited Role and Compliance with the IT Act

MySpace had a limited role in providing access to a communication system and only modified the format, not the content, through an automated process.

Since MySpace met the requirements outlined in the IT Act and Intermediary Guidelines of 2011, it was granted the protection of Section 79 of the IT Act.

Further Reading: Copyright infringement cases in India

Real-World Examples of Contributory Copyright Infringement In the United States

Sony Corp v Universal City Studios Inc

The Betamax case, also known as Sony Corp v Universal City Studios Inc, was a groundbreaking legal dispute that addressed the topic of secondary liability and contributory infringement under the 1976 Copyright Act.

The central issue was whether a VCR manufacturer could be held responsible for copyright violations committed by its consumers.

The court recognised that secondary liability was a firmly established notion in US copyright legislation, encompassing both vicarious liability and contributory liability.

Since Sony was unaware of its customers’ copyright-related acts, the court ruled that Sony could not be held accountable for contributing to that infringement.

The argument was that Sony possessed only indirect knowledge that its clients could utilise its devices to create unauthorised duplicates of copyrighted materials.

The court leaned on the staple article of commerce doctrine from patent law, which asserts that an infringing item with substantial non-infringing uses would not incur liability for infringement.

Sony was found not liable for contributory violation since Betamax had a considerable number of non-infringing applications.

This case laid the groundwork for the notion that selling copying equipment, like other commercial products, does not amount to contributory infringement if the item has widespread legitimate applications and offers substantial non-infringing uses.

The Napster Case

The Napster, Inc. case was about whether the company was responsible for violating the ownership’s exclusive rights that occurred on its peer-to-peer file-sharing platform.

The Music Share software used by Napster allowed users to share and download MP3 music files directly from each other’s computers.

The Ninth Circuit court held Napster responsible for both contributory and vicarious violations.

This means that Napster had actual knowledge of the infringing activity taking place on its platform and materially contributed to it by providing the software and services.

The court ruled that the defense in Sony, which limits liability for companies that distribute products with substantial non-infringing uses, was not applicable in this case because Napster had specific knowledge of direct infringement.

This case set a precedent for holding companies responsible for infringing activities that occur on their platforms, even if the company itself did not directly engage in infringing activities.

The Grokster Case

The MGM Studios v. Grokster case focused on determining if the peer-to-peer services Morpheus and Grokster should be held responsible for copyright violations committed by their users.

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Unlike Napster, these services did not rely on a centralised index but instead used temporary indices known as supernodes located on users’ computers or functioned without creating any index.

The court determined that the defendants could not control their users’ actions once the software was distributed, similar to Sony’s lack of control over Betamax users.

While the defendants were aware of copyright violation due to legal notices they received, the court ruled that, for contributory infringement, knowledge of a specific violation must be present at the exact moment when the defendant could have limited the violation.

Moreover, the court found no material contribution to the breach, citing Sony to argue that the technology had both infringing and non-infringing uses, comparable to VCRs and photocopiers.

The Grokster case diverges from Sony in its consideration of the defendant’s intent to encourage infringement activity.

The updated test states that an individual who distributes a device with the aim of promoting its use for copyright infringement, as demonstrated by explicit communication or other proactive measures to support infringement, can be held liable for the resulting infringing acts by third parties.

Aimster case

The Aimster case revolved around a peer-to-peer sharing platform that enabled users to exchange music files via its Instant Messaging services.

Aimster contended that it could not determine the contents of transmitted files since they were encrypted.

The Seventh Circuit Court of Appeals affirmed the district court’s decision to grant a preliminary injunction against Aimster, as it concluded that Aimster was aware of the infringing activities.

The court pointed out that Aimster’s tutorial demonstrated examples of copyrighted music files being shared, and its ‘Club Aimster’ feature provided a list of the top 40 songs accessible on the platform.

The court dismissed the Sony defense presented by Aimster because it failed to demonstrate that its service had non-infringing applications.

Aimster was also ineligible for the protections under the DMCA safe harbor provisions, as it had not taken any steps to comply with the requirements of Section 512 and had promoted infringement.

The court declared that, in copyright law, ‘willful blindness constitutes knowledge.’

Unraveling the Web of Copyright Infringement: Online Marketplaces and Contributory Liability

Contributory copyright infringement refers to the liability of a person or entity who, with knowledge of the infringing activity, contributes to, facilitates, or induces copyright infringement committed by another.

In the context of online marketplaces, contributory infringement can arise when a platform knowingly allows its users to sell counterfeit or infringing products on its website, without taking adequate measures to prevent such activity.

One case that exemplifies this is Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., in which the luxury goods manufacturer Louis Vuitton sued the internet service provider (ISP) Akanoc for willfully hosting websites that marketed counterfeit goods.

Louis Vuitton sent takedown notices to Akanoc, but the company failed to remove the websites. As a result, the court found Akanoc liable for contributory infringement.

For allowing the sale of fake goods on their platforms, online marketplaces like Amazon and eBay have also come under fire for alleged contributory infringement.

To avoid liability, these companies have implemented various measures, such as vetting sellers, monitoring listings, and offering tools for rights holders to report and remove infringing content.

However, these measures are not always foolproof, and rights holders continue to hold online marketplaces accountable for the sale of counterfeit and infringing products on their platforms.

Related Article: Louis Vuitton copyright case

Contributory Infringement Across the Globe

Laws on contributory infringement vary from country to country, with some similarities and differences in their legal approaches.

Here’s a brief overview of contributory infringement laws in various countries:

China

In China, an Internet Service Provider (ISP) can be held liable for contributory infringement if it is aware that a user is engaging in infringing activities and fails to take necessary steps to stop them.

European Union

The European Union requires Internet service providers (ISPs) and online marketplaces to immediately remove or block access to any goods or data that violate licensing agreements.

France

A contributory trademark violation may be subject to criminal prosecution in France.

While this is not a common practice, there have been at least two criminal cases involving contributory infringement.

Germany

German courts typically do not consider ISPs as liable parties in contributory infringement cases.

However, they may hold ISPs liable for interference if they fail to implement reasonable measures to prevent infringing products from being accessed online.

United Kingdom

Unless they conspire with the main offender to violate copyright or trademark rules, the UK normally does not hold other parties accountable for contributory infringement.

In conclusion, while there are similarities in the approaches taken by various countries to address contributory infringement, the specific legal frameworks and interpretations can differ significantly.

As a result, it is essential for individuals and businesses operating in multiple jurisdictions to be aware of the local laws and regulations governing contributory infringement to ensure compliance and minimise potential legal risks.

Also Read: ISP liability for copyright infringement

Consequences of Contributory Copyright Infringement

If you are found to be involved in contributory copyright infringement, you may face several legal and financial consequences.

These consequences can vary depending on the jurisdiction and the specific details of the case. Some potential outcomes include:

  • Civil Penalties: You may be held financially responsible for the infringement and ordered to pay damages to the copyright owner. The amount of damages will depend on the extent of the infringement and the financial losses suffered by the copyright holder.
  • Injunctions: A court may issue an injunction, which is a legal order requiring you to stop infringing activities. This may involve disabling access to the infringing content, removing the content from your platform, or taking other steps to prevent the further violation.
  • Legal Costs: If the copyright holder decides to take legal action against you, you may be required to pay for their legal costs in addition to your own. This can be a substantial financial burden, especially if the case goes to trial.
  • Loss of Reputation: Being found liable for contributory copyright infringement can damage your reputation, both personally and professionally. This can negatively impact your relationships with customers, partners, and other stakeholders, as well as potentially leading to a loss of business opportunities.
  • Criminal Penalties: In some jurisdictions, contributory copyright infringement can also result in criminal charges. This may involve fines, probation, or even imprisonment, depending on the severity of the violation and the specific laws of the jurisdiction.

Avoiding Contributory Copyright Infringement

To avoid contributory copyright infringement, consider taking the following steps:

Understand copyright laws: Educate yourself and, if applicable, your employees on copyright laws and regulations, especially those that pertain to your industry or a specific field.

Understanding the legal landscape can help prevent unintentional infringement.

Use licensed content: When using copyrighted material, ensure that you have the necessary permissions or licenses from the copyright holder. This can help you avoid both primary and contributory infringement.

Implement protective measures: Establish policies and procedures to handle contributory infringement claims, such as a DMCA (Digital Millennium Copyright Act) takedown process for online content.

Proactively monitor your platform or services for potential infringements and take appropriate action when necessary.

Educate users: If you operate an online platform, inform users about copyright laws and the importance of using licensed content.

Make sure users are aware of the consequences of copyright infringement and the steps they can take to ensure compliance.

Act promptly: If you become aware of potential copyright infringement involving your services, act swiftly to address the issue. Remove infringing content, disable access to the material, or take other appropriate measures to mitigate the infringement.

Cooperate with copyright holders: Be responsive and cooperative when copyright holders or their representatives reach out to you about potential infringements. Work together to resolve the issue and maintain a respectful, professional relationship.

Review business partnerships: Assess your relationships with third parties to ensure they adhere to copyright laws and do not engage in infringing activities.

If a business partner is found to be involved in copyright infringement, consider reevaluating or terminating the partnership to mitigate your risk of contributory infringement.

By taking these proactive steps, you can significantly reduce the risk of being held liable for contributory copyright infringement and ensure that you respect the rights of copyright owner.

Who is Liable for Copyright Infringement?

In the context of copyright infringement, the following parties can be held liable:

1. Direct Infringers

Direct infringers are individuals or entities who directly engage in unauthorised copying, distribution, or public display of copyrighted works without permission from the copyright holder.

Examples include uploading copyrighted movies or music to file-sharing websites, unauthorised use of copyrighted images on a website, or distributing copyrighted books without permission.

2. Contributory Infringers

Contributory infringers are parties that indirectly contribute to the infringement by providing assistance, support, or resources to direct infringers.

They are held responsible for copyright infringement if they have actual knowledge of the infringement and materially contribute to the infringing activity.

For example, a website that provides links to pirated content or a company that supplies software specifically designed to facilitate copyright infringement can be held liable as contributory infringers.

3. Vicarious Infringers

Vicarious infringers are individuals or entities that have the ability to control or supervise the infringing activities of others and receive direct financial benefit from the infringement.

They can be held liable for copyright infringement even if they are not directly involved in the infringing activities.

Examples of vicarious infringers include the owner of a venue that hosts a band performing copyrighted music without permission or an online platform that profits from ads displayed alongside unauthorised copyrighted content.

In some cases, multiple parties can be held liable for copyright infringement, depending on their level of involvement, knowledge, and control over the infringing activities.

It is essential for individuals and businesses to be aware of copyright laws and obtain necessary permissions to avoid potential infringement liabilities.

Conclusion

Contributory copyright infringement is a complex area of law that holds parties accountable for indirectly participating in the unauthorised use of copyrighted material.

Familiarise yourself with copyright laws, use licensed content, and implement protective measures to reduce your risk of liability.

By understanding and respecting the rights of copyright holders, you can help foster a fair and ethical environment for sharing and using creative works.

FAQs

What is the difference between primary and contributory copyright infringement?

Primary infringement is the direct violation of a copyright holder’s exclusive rights, while contributory infringement occurs when someone aids or facilitates the primary infringement.

Can individuals be held liable for contributory copyright infringement, or does it only apply to companies?

Both individuals and companies can be held liable for contributory copyright infringement if they knowingly contribute to or induce another party’s direct infringement of copyrighted material.

How can I protect my online platform from contributory copyright infringement claims?

Implement a DMCA takedown process, proactively monitor your platform for potential infringements, and educate users about copyright laws and the importance of using licensed content.

Does fair use always protect against contributory copyright infringement?

Fair use is a defense that can protect against some claims of infringement, but it does not always apply. Each case is evaluated individually based on specific factors.

Are there any legal consequences for contributory copyright infringement?

Yes, parties found liable for contributory copyright infringement can face financial damages and potential criminal charges.

What is secondary copyright infringement?

Secondary copyright infringement occurs when a party does not directly engage in copyright infringement but contributes to or facilitates the infringement by another party.

There are two primary types of secondary infringement: contributory infringement and vicarious copyright infringement.

Is contributory violation different when it comes to copyrights and trademarks?

Contributory infringement is a form of secondary liability in both copyright law and trademark law.

It occurs when an individual or entity actively encourages or facilitates another person’s violation of someone else’s intellectual property rights.

Copyright and trademark laws are two distinct areas of intellectual property law; however, they have many similarities when it comes to contributory infringement.

In terms of copyright law, a person can be held liable for contributory infringement if they knowingly contribute to or induce another party’s direct infringement of copyrighted material.

In terms of trademark law, a person or company is held accountable for participating in contributory infringement of a trademark even if they did not directly engage in activities that legally qualify as infringement.

What might happen if contributory infringement is executed?

If you are found to be involved in contributory infringement, you may face legal and financial consequences such as civil penalties, injunctions, legal costs, loss of reputation, and potentially criminal penalties, depending on the jurisdiction and the specifics of the case.

What is an example of contributory infringement?

An example of contributory infringement is the case of an online file-sharing platform that knowingly enables users to share and download copyrighted music, movies, or software without the copyright owner’s permission.

The platform does not directly infringe the copyright but facilitates and materially contributes to the violation by its users.

What is the difference between vicarious and contributory infringement?

Vicarious infringement occurs when a party has the ability to control the infringing activities of another party and directly benefits from the infringement.

Contributory violation, on the other hand, occurs when a party knowingly and materially contributes to the infringement by another party.

The key distinction between the two is the level of control and direct benefit from the breach in vicarious infringement, compared to the knowledge and material contribution to the violation in contributory infringement.

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