Potential Liability of World Wide Web Providers, Part II

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.

November 1st, 1995|