Contributory and vicarious

To continue, the introduction of the internet did not require any significant change or extensions and additions to copyright laws. Most material or types of work on the internet were already included in the existing laws relating to copyright. As regards harmonisation, “‘cyberspace’ exists trans-nationally so issues of jurisdiction and harmonisation naturally ensue. “Copyright law has been greatly challenged as policing cyberspace is not effective as there are huge numbers of individual users and there is a great deal of freedom as to when and where material is accessed.

“‘Personal use’ or ‘free use’ such as home taping and copying of music and films has been impossible to stop and would be uneconomical to police. “Flexibility is the defining feature of regimes of copyright law, the ability to grow and adapt to incorporate new subject-matter and new rights…The digitalisation of copyright subject-matter and the ease with which digital copies can be manipulated and disseminated over the internet is the greatest test of this flexibility for at least a century;”27 as Thomas Hays commented, the ‘regimes of copyright law’ are put under the hardest test with the introduction of digital copyright subject-matters.

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Before introducing you to what exactly is peer-to-peer file sharing (P2P) and the issues which were raised in the infamous Napster and Grokster litigations, a historical background of cases dealing with technological advancements and the law of copyright will be given.The big issue here is that assuming that there has been infringement by an individual, will the person who provides the facilities for committing that infringement (secondary infringement) liable for secondary infringement? 28 US law allows personal copying and has a private copying scheme that applies to digital music recordings. 29 For others, there are two forms of secondary infringement; ‘contributory’ and ‘vicarious’.In ‘contributory’ the copyright owner must establish that direct infringement has occurred and that either the defendant knowingly contributes to that direct infringement in some way, or provides services a machine or technology which enables the infringement to occur. ‘Vicarious’ infringement derives from employment law and requires the plaintiff to show that the defendant has the ‘right and ability to supervise the infringing activity and also has a direct financial interest in such activities.

‘ For both ‘contributory’ and ‘vicarious’ infringements there is no need for a link with the primary infringer.An important early US law case is the case of Sony Corp.  Sony manufactured videocassette recorders (VCRs) and the issue which arose was whether they were liable for the copyright infringement that may have resulted.

By a majority vote of 5-4 the Supreme Court held that Sony was not liable. It was held that the sale of VCRs does not constitute contributory infringement as the ‘product is widely used for legitimate, unobjectionable purposes. ‘ Based on the facts found by the District Court, the majority of the potential uses of the device are non-infringing, thus the ‘Betamax is capable of commercially significant non-infringing uses.

‘ The court ruled that the incidental uses (such as the video recording) were not important enough. Most countries have very similar rules in their copyright systems as mentioned above. The analogous rules addressing such issues (‘contributory’ and ‘vicarious’ liability) in the UK are ‘authorisation’ and ‘joint tort’. There is a stricter test for ‘authorisation’ than ‘contributory’ infringement; the defendant accused of authorising infringement should have either the power to prevent it or control over the means by which it is occurring.In the UK case of Amstrad34 the defendants were a company (Amstrad) which made twin-deck tape-recording machines enabling you to make duplicate recordings from one cassette to another. The appellants were record companies who brought an action to restrain the defendants from selling the machines without ensuring that their copyright in sound recording was not infringed. The appeal was dismissed and the House of Lords held that the advert of the hi-fi system did not authorise unlawful copying.

It is up to the buyer to decide whether to copy and Amstrad merely facilitated the copying but did not authorise it.Furthermore, there was no joint infringement with the buyers who used the machines unlawfully, since the hi-fis were capable of being used both lawfully and unlawfully, and there was no common design between them and the users to infringe copyright. It is important to note that Lord Templeman estimated that for every authorised copy of a record, two infringing copies were made. In the Australian case of Moorhouse35 a university was held liable for providing photocopiers in their library without taking reasonable steps to prevent unlawful copying.

It was held that the notices to the students which were attached to the machines, informing them of possible copyright breaches were inadequate and misleading, setting out the wrong section of the Copyright Act 1968 s. 40. The University facilitated the copying and failed to take reasonable steps to limit the use of the machines in a legitimate way, thus authorising any infringements that resulted from their use (in this case the infringement was photocopying parts of a book).