MPAA, RIAA & Copyrights

Secondary infringement and the Copyright Act

Some of you may remember Capitol Record v. Debbie Foster, where the RIAA sued an Oklahoma woman over copyright infringement. In July, the case against her was dismissed with prejudice, which, in the eyes of the judge, made her the prevailing party. Earlier today, the judge handed her another legal victory, awarding her "reasonable" attorneys' fees from the RIAA.

The RIAA's strategy of keeping Foster as a defendant and saying that she was responsible for secondary copyright infringement appears to have backfired and was cited by the Judge as supporting his attorneys' fee award. Judge Lee was unconvinced by the the RIAA's argument that she was secondarily liable due to her owning the account allegedly used for the infringement.

"The Copyright Act does not expressly render anyone liable for infringement committed by another. Rather, the doctrine of secondary liability emerged from common law principles," wrote Judge Lee. "Under those common law principles, one infringes a copyright contributorily by intentionally inducing or encouraging a direct infringement."

Judge Lee set out the three elements of a claim for contributory copyright infringement: direct infringement by a third party, knowledge by the defendant that third parties were directly infringing, and substantial participation by the defendant in the infringement. "Merely supplying means to accomplish infringing activity [e.g., an Internet connection] cannot give rise to imposition of liability for contributory copyright infringement," according to the opinion.

The record labels could not support their argument of secondary liability, according to the judge. Perhaps most importantly, Judge Lee could find no case "holding the mere owner of an Internet account contributorily or vicariously liable for the infringing activities of third persons."

The judge also had harsh words for the RIAA, saying that it looked as though they had pressed the secondary infringement claims to force Foster into a settlement, even after they realized she was not responsible for the alleged file sharing.

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