contributory infringement on the internet

Contributory infringement on the internet

In the oxford dictionary the word contributory is defined as :

1. Of, relating to, or involving contribution.

2. Helping to bring about a result.

3. Subject to an impost or levy.

infringement refers to the violation of a law or a right. 

Hence it can be concluded that the term contributory infringement would mean essentially mean something/someone which helps to bring about a state when a right/law is violated. It is a term which is essentially concerned with intellectual property rights.

In this article we shall study the violation of such rights by platform providers on the internet, such as google, youtube, bittorrent etc and the liability they may or may not incur for providing a platform on the internet which help end users to infringe upon the intellectual property of others. One may call the provider of such a platform a “contributory infringer” or a “vicarious infringer”

Copyrights relate to the rights over anything,whom anyone may posess with regard to the sale,distribution,publication of anything. With regard to electronic and audio-visual media, unauthorized reproduction and distribution is also commonly referred to as infringement now must study what entities may be able to contribute to it.

Case law with relation to contributory infringement:

In order to understand the position of the platform providers in law we must study the workings of the case  Inwood Laboratories v. Ives Laboratories stated that liability for trademark infringement can extend beyond those who actually mislabel goods with the mark of another. Even if a manufacturer does not directly control others in the chain of distribution, it can be held responsible for their infringing activities under certain circumstances. The key test in the Ives case was if the manufacturer suggested, even if by implication, that they use their goods to infringe, then the manufacturer was liable for trademark infringement.

In the 1990’s two cases used the Ives test to specifically hold owners of a flea market liable for trademark infringement for counterfeit goods sold at their flea market.  In both of these cases, a landlord operated a flea market where sellers sold counterfeit goods.

 In Hard Rock Café Licensing Corp. v. Concession Services, the Seventh Circuit held that “willful blindness” is sufficient for liability under contributory infringement. 

In Fonovisa v. Cherry Auction, the Ninth Circuit held that landlords of flea markets who do more than merely rent space, and effectively supplies all aspects necessary for a marketplace, can be liable if it knows of infringing activity on the premises. In addition, the landlord who knowingly fails to prevent such action will also be liable.

After the advent of Internet most of the corporate Intellectual Property are held in the digital form as it provides affordable access of all the IPR resources to the public at large. However, internet has also made infringement of IPR , in particular copying of Copyright material easy and simple..Internet is being termed as the world”s biggest copying machine.

In the Tiffany v. eBay trademark trial in 2004 for contributory trademark infringement is currently being heard in the U.S. District Court in Manhattan. EBay successfully argued that it was a platform for buyers and sellers to interact and, thus, not liable for counterfeit items posted by sellers. Brand manufacturers, eBay maintained, that the Brand manufacturers were responsible for finding the items they believed to be fakes and requesting their removal. Because Ebay is, in essence, an online flea market, the court must likely look to the abovementioned judgements for guidance in deciding the present case. Like other user-generated content sites, such as YouTube, eBay immediately takes down items in response to complaints, leaving sellers who feel unfairly fingered to take up their case with the rights holder. E-Commerce giant eBay claimed victory July 14 in its long legal battle with luxury brand manufacturer Tiffany Co.

In the 2010 case, AFACT V. iiNET , in this case iiNet, Australia's third largest ISP, was taken to court by a group of 34 movie production houses.The group included the Australian divisions of Universal Pictures, Warner Brothers and 20th Century Fox.They claimed that iiNet was guilty of copyright infringement for not preventing illegal downloads of films.The movie group hired investigators to track the numbers of iiNet customers using BitTorrents to illegally download movies.They wanted iiNet to warn the offenders and then cut them off if they continued to download. The group also wanted certain websites to be blocked by the ISP.However, the judge ruled iiNet was not responsible for the online behaviour of its customers.

Thus, where sharing of information among people has become the major function of the internet, the peer-to-peer file sharing services provided by various websites, linking, deep linking, framing and other innovations which have changed the way people share information over the world wide web, have given rise to a legal controversy. While the users downloading music, software, computer games and other copyrighted material are held liable for direct copyright infringement, the service providers providing the platform for infringement go scot free as the existing Copyright laws has no provision for making a service provider liable in such a situation. The rapid dissemination of data over the Internet means that one has to spend a lifetime and fortune tracking down copies of the work that infringes those rights, indentifying the infringer and litigating in each concern jurisdiction. 

Taking an overview of the above one can reach the conclusion that :

• Willful blindness is not an excuse to contributory infringement
• The one who supplies  platform for infringing goods to be made available, can be held acoountable for not taking any action
• Even if the supplier of the platform has the slightest information of an activity, he cannot vacate his responsibility

Hence, the supplier of a platform on which there may be infringement ,be it you tube or e-bay, the case law has created essentially a “duty to take care” on the supplier,but this duty to take care is discretionary and rarely holds in the court of law because it is solely dependant on the amount of control he enjoys over such platform. For example, in one case a court found that the operator of a “California swap meet” was liable for contributory trademark infringement because it was aware that vendors at its swap meet were selling counterfeit recordings that violated the trademark of the company that owned the rights to the recordings. While the swap meet operator did not sell the counterfeit items itself, it profited on the sale of the items by selling booth space to the vendors and collecting an entrance fee from the customers buying the infringing products. In another case the manufacturer of a generic drug was found liable for contributory trademark infringement because it continued to supply the drug to pharmacists it knew were mislabeling the drug with the name of the trademarked medication.

However in another case a court felt that a company providing domain name registration, had less control over the use of its service and was not liable for contributory trademark infringement when someone registered a domain name that infringed a trademark.

Hence, while determining liability for contributory trademark infringement are :

·        If the platform provider is aware of the infringement: the court while determining any such issue will have to take view of the fact that whether he was aware of the infringement and even if he was not aware , could/should he have been aware of it.

·        If the platform provider has the ability to monitor and control the use of your product or service: this solely depends on the level of control or power he enjoys over a platform he has so provided, if the court feels that there is not even the remote possibility of him being able to acquire knowledge of what was going on,he cannot be held responsible.

·        Is the platform provider is in a position to receive some benefit from the infringement :this means that the court will have to take account of the quantum of monetary gain which the supplier of such platform could have or may hav gained as a result of such infringement

International perspective

The substantive provisions of the International Conventions such as WIPO Performance and Phonograms Treaty as well as the TRIPS Agreement aim to counter widespread copyright infringement over the internet internationally. They aim at protecting authors original works of authorship which includes musical and artistic works and also accord national treatment to all Contracting parties. As given in the Berne Convention as well as the Rome Convention.

The minimum protection which is granted to the copyright holders, such as large corporations, small artists, businesses under the aegis of these Conventions is to provide the possibility of preventing certain acts done without their consent. The restricted acts compromise broadcasting or communication to the public of a live performance, recording an unfixed performance, reproducing a fixation of a performance, provided that the original fixation was made without the consent of the performer and the reproduction is made for purposes not permitted by the Convention or by the performer. As is also provided under the second sentence of TRIPS Agreement 14.1.

The Conventions also provide for strengthening of domestic Copyright laws as well as take technological measures in order to help enforce the provisions of the Conventions. Therefore so far, the public policies have addressed this new form of platform ( internet ) based infringement by strengthening existing domestic copyright laws for example the US has strengthened its Copyright laws by bringing about the USA Digital Millennium Copyright Act (DCMA).

Indian perspectives

India has specific legislations to deal with various kinds of IPR infringement however these legislations are not equipped to deal with some of the modern day copyright violations. The Copyright Act, 1957 prohibits reproduction of the copyrighted work in any material form including the storing of it in any medium by electronic means, by any unauthorized person but is incapacitated to deal with illegal duplication, importation, distribution and sale of pirated music as it becomes difficult to trace the location of information. 

India passed the Information Technology Act, in the year 2000 to deal with the emerging cyber issues. It aims to provide for the legal framework so that legal sanctity is accorded to all electronic records and transactions carried out by the means of electronic data interchange and other means of electronic communication (e-commerce). However, it does not deal with major issues like Spaming, Cyber Stalking, Phising etc. 

Conclusion

Therefore it is evident  that the proliferating copyright infringement through the internet has become a real threat to the growing internet industry and the economic growth of countries dependent on it as it cause catastrophic income losses as well as loss of reputation, honor, and integrity of the copyright holders. The laws need to be modified/changed/overhauled with an aim to route out such infringements and protect the rights of the right holders.