Legal Memorandum: Liability for Copyright Infringement

Issue: Whether a person can be held liable for copyright infringement when he or she has no knowledge of, nor any information about, any alleged copyright infringement which may have occurred and his or her only connection is that the ISP account happens to be in his name.

Area of Law: Intellectual Property Law
Keywords: Liability for copyright infringement; Knowledge of infringement; ISP account
Jurisdiction: Federal
Cited Cases: 464 U.S. 417; 443 F.2d 1159; 660 F. Supp. 1057; 807 F.2d 1110; 982 F.2d 693; 720 F. Supp. 751; 239 F.3d 1004; 271 F. Supp. 2d 737
Cited Statutes: None
Date: 09/01/2004

Framework for Liability

Little Mole Music v. Spike Invest., Inc., 720 F. Supp. 751 (W.D. Mo. 1989) (“Liability for copyright infringement may be either direct or vicarious; personal participation in infringing activity will result in direct liability while vicarious liability is predicated on right and ability of defendant to supervise infringing activity and defendant’s obvious and direct financial interest in such an activity.”)

Direct Infringement

Southern Miss. Planning & Dev. Dist., Inc. v. Robertson, 660 F. Supp. 1057 (S.D. Miss. 1986) (“Copyright infringement is shown by proof of ‘ownership’ of copyrighted material by plaintiff and proof of ‘copying’ by defendant; ‘ownership’ of copyrighted material is shown by proof of originality, copyrightability, and compliance with applicable statutory formalities; ‘copying’ is shown by proof of access to copyrighted material and substantial similarity between works.”)

Fitzgerald Pub. Co., Inc. v. Baylor Pub. Co., Inc., 807 F.2d 1110 (2d Cir. 1986) (“intent or knowledge is not an element of infringement, and thus even an innocent infringer is liable for infringement”)

Arica Inst., Inc. v. Palmer, 770 F. Supp. 188 (S.D.N.Y. 1991) (“[C]opying may be inferred where plaintiff establishes that defendant had access to copyrighted works and that there is substantial similarity between protected expression and allegedly infringing works.”  “[A]ccess to copyrighted work may be inferred when defendant has had reasonable opportunity to view plaintiff’s work before creating his own work” and may not […]

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