We discussed infringement last week, but what we didn’t say was this is “direct infringement.” This is when the party who is held responsible is the one who actually engaged in infringing activities. OK, that makes sense, but you’re thinking, “If you are saying that, then there is something else? Someone can be held responsible for infringing indirectly?” Yes. Yes, one can.
Indirect, or secondary, infringement is a thing. For example, contributory infringement is when one who knowingly induces, causes or materially contributes to copyright infringement, by another but who has not committed or participated in the infringing acts him or herself is held liable for that infringement. Notice the word “knowingly” is included for copyright so that the contributory infringer is liable if he or she had knowledge, or reason to know, of the infringement and acted anyway.
Trying to figure out how that would work? An easy example is to take you back to that lovely time of flannels and grunge music: The late 1990’s. Remember good old Napster and its ilk? Napster didn’t provide the music to be copied by others, nor did it copy the music. But it did provide the vehicle to make it easy.
Another company besides Napster that did that was Grokster, and Grokster got sued. Not only did they get sued, they lost. The U.S. Supreme Court found that “One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device’s lawful uses.”
Yeah, so if you make it possible for others to infringe, and you know that is what is happening, then “It wasn’t me” is likely not going to work.