Computer, Content Companies Battle Over Vicarious Copyright

Computer and tech companies have told a federal court that it should uphold a California district court ruling that vicaroius liability requires a causal connection between the infringement and a direct financial benefit to the defendant.

That is according to an amicus brief filed by the Internet Infrastructure Coalition, the Internet Association, the Computer & Communications Industry Association, and the Consumer Technology Association.

The case involved adult content provider Perfect 10, which asked the appeals court to reverse the decision in favor of Giganews in a case of alleged copyright infringement on Giganews' Usenet electronic bulletin board service. At the time of the lower court decision in January, Giganews called it a landmark ruling.

According to the computer companies, content creators' support for eliminating that causal link "would have little effect on cases brought against pirates, but would severely and unnecessarily threaten innovation and investment in lawful online services and connected devices."

They said that would expand the vicarious liability standard for copyright infringement "unprecedented in scope" and resulting in "limitless and ruinous statutory damages liability "for technology innovators based on inconsequential infringements by even a tiny minority of users, whether or not the service or device provider was aware of the infringement or had the capacity."

They also said that in some cases statutory damages for vicarious liability may be appropriate, but not divorced from the causal connection between infringement and ill-gotten financial gains.

On the other side of the argument are the Motion Picture Association of America and Recording Industry Association of America. “The court, at a minimum, should amend its opinion to make clear that where the availability of a particular type of infringing content, such as movies or music, acts as a draw for a defendant’s users, and where the defendant has but does not exercise the right and ability to stop or limit that infringement, the defendant is vicariously liable for infringement of works of that type," MPAA said in its own amicus brief.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.