P2P Copyright Network

1. Copyright Infringement: Direct and Indirect
Anne Gilliland
June 27, 2016
Although there are situations where copyright infringement carries criminal
penalties many infringement lawsuits are civil actions. This means that they often
are brought by the rights holder, not by the government. There are two kinds of
copyright infringement: direct infringement and indirect infringement.
Direct infringement occurs when a person who is not the copyright owner
substantially violates any of the exclusive rights of the copyright holder. This
violation goes beyond what is allowed by copyright law’s exceptions and occurs
without the copyright holder’s permission.
Direct infringement is what is known as “strict liability.” A strict liability statute is
one that applies despite the actor’s state of mind. A common example of a strict
liability statute is exceeding the speed limit. A driver may not have intended to be
speeding but still may have broken the speed limit law. The standard for direct
infringement through reproduction of the copyrighted work is often defined as
substantial similarity with the copyrighted work and access to the original.
Consequently, it is possible to infringe a copyright without intending to do so. For
example, in a number of music copyright cases, such as one involving former Beatle
George Harrison, the infringer heard music and copied it accidentally in a new
composition.
On the other hand, if the alleged infringer can prove that he or she never had access
to the copyrighted work, that infringement cannot have taken place. It is also
possible to directly infringe a copyright without even knowing that the work is
copyrighted. For example, a person might believe that work was in the public
domain, copy it, and then find out that the work was still in copyright. Despite the
lack of knowledge, this could still be copyright infringement.
The infringement must also be substantial in that it should be material. In other
words, the infringement has to have actually happened, not just have been
contemplated. In addition, the infringement must be more than what lawyers call de
minimis (a trivial amount). There is no set standard for what comprises a trivial
amount.
There is no copyright infringement when the law allows an exception to the
exclusive rights of the copyright holder. For example, there is a specific exception in
the copyright law to the right of public performance that allows a teacher to show a
movie in class under certain circumstances. There is no a copyright infringement
when a teacher uses that exception and shows a movie in class without obtaining a
profile public performance license. There is no copyright infringement if an alleged
infringer claims fair use and a court upholds the claim.

2. If the person using the copyrighted work takes advantage of a statutory exception,
then there is no need to seek permission from the rights holder. Also, there is no
infringement if the copyright holder has given permission to use the copyrighted
work and the work has been used in a way that is consistent with the permission
granted.
Indirect infringement can occur in two ways: contributory infringement and
vicarious infringement. Contributory infringement occurs when the infringer
knows that the infringement is happening and induces, causes, or contributes to the
infringement. Courts have found contributory infringement in cases where
companies built and provided peer-to-peer software that was used for illegal file
sharing. Note that contributory infringement differs from direct infringement in
that the infringer must have knowledge that what he or she is doing violates
copyright law.
Vicarious infringement occurs when the alleged infringer has the ability to control
the copyright infringement in some way and receives a monetary benefit from the
infringement. The classic examples of vicarious infringement are the swap meet
cases, where a business person set up a market where other business people sold
pirated goods. The person who set up the swap meet had the ability to exclude or
control the infringement and also benefited financially from the infringement
through the fees paid by the sellers who rented stalls at the meet. Courts have held
that these swap meet owners were liable for copyright infringement, even if they
did not direct commit the infringing activities.