Infringement of right to copy
To find infringement of the right to copy, a court must find copying and improper appropriation of the copyrighted work by the accused infringer.
Copying
Independent creation of a copyrighted work is not considered to be copying. This means that copying cannot be proven from similarity alone. There are two ways to prove copying.
The first is through direct evidence. Some authors (especially authors of factual compilations such as phone books) plant minor errors in their works so there will be obvious evidence of any copying. In other cases, there may be evidence of the infringer's admission to copying.
The other way to prove copying is through circumstantial evidence. The factors in this analysis are access and similarity. If the author of the accused work had access to the original, and the accused work has sufficient similarities to the original, a court can conclude that copying took place.
Improper appropriation
While copying is a fairly straightforward analysis, improper appropriation is often more difficult. When a work is copied word for word (or bit for bit), the copying can generally be considered to be improper appropriation. The more difficult case is when only part of a work is copied—for example, when characters or plot devices from a literary work, or a chord progression or melody from a musical composition, are copied to create a derivative work.
The key to improper appropriation is substantiality of the copying. Copying an insubstantial part of a work is not likely to constitute infringement. Whether copying is substantial is still a difficult question. In Nichols v. Universal Pictures, 45 F.2d 119 (2d Cir. 1930), Judge Learned Hand concluded that "the proper approach" in answering the question must be "more like that of a spectator, who would rely upon the complex of his impressions of each character." This is known as the subjective test for improper appropriation. Some other courts, particularly in the Ninth Circuit, apply an objective test that compares each copyrightable element of the two works to determine to what extent the accused work copies the original.
Note also that in some circumstances, certain works or certain parts of works can legally be copied under the fair use doctrine, discussed later.
Infringement of right to distribute
Copyright owners also have the sole right to distribute copies of their work, whether through sales or otherwise. This includes the right to import: 17 U.S.C. § 602 bans unauthorized importation of copyrighted works, except for certain personal or educational uses.
The key exception to this right is the first sale doctrine. Once a legal copy is sold, the copyright holder has no further control over the distribution of that particular copy of the work. For example, one who purchases a book may re-sell that book without violating the copyright holder's section 106(3) distribution right. The only exceptions to this doctrine are sound recordings and computer programs, which cannot be rented out even after their first sale. 17 U.S.C. § 109.
Contributory and vicarious infringement
Contributory infringement is a common law doctrine famously stated in Gershwin Publishing v. Columbia Artists Mgmt., 443 F.2d 1159 (2d Cir. 1971): "One who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a 'contributory' infringer." Vicarious infringement is a separate but related doctrine applied to those who have the power to halt infringing conduct, and derive a financial benefit from the infringing conduct.
The two doctrines can be found together, but can also be found separately. Contributory infringement is a tort doctrine; it requires knowledge and participation. Vicarious infringement is more closely related to agency. A person can be liable for vicarious infringement simply because of their relation with the infringer (e.g. an employer can be liable for employees' infringement on the job). Both types of infringement are equivalents of direct infringement.
The most famous contributory and vicarious infringement case is Sony v. Universal City Studios, 464 U.S. 417 (1984) . The Supreme Court was deeply split on the issue, but a 5-4 majority decided that Sony was not liable for contributory infringement from the sale of its Betamax VCRs. "The sale of copying equipment," wrote Justice John Paul Stevens, "like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses." The Court went on to find that "time shifting," the act of videotaping a broadcast to watch it later, was a form of fair use even if unauthorized, and therefore not infringing. Similar logic was applied to MP3 players in RIAA v. Diamond Multimedia Systems, 180 F.3d 1072 (9th Cir. 1999) (holding "space shifting" to be a substantial noninfringing use).
The rapid growth of the Internet has led to a number of developments in contributory and vicarious infringement law. One early fear was that the doctrines would lead to potentially limitless liability for any person operating a system that processed infringing data. The Digital Millennium Copyright Act of 1998 created a "safe harbor" for ISPs and server operators, protecting them from contributory infringement as long as they (1) have a policy of terminating users who are repeat copyright infringers, (2) adopt standard copyright protection measures, and (3) register an agent with the Copyright Office to receive infringement claims from copyright owners. The safe harbor applies to systems involved in the routing, storing, caching, and linking of copyrighted data.
Despite the safe harbor, some online services have been found liable for contributory and vicarious infringement. The best-known examples are the Napster and Grokster file sharing services, both of which were forced to shut down after they were unable to effectively police their content to stop infringement. A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001); MGM Studios v. Grokster, 545 U.S. ___ (2005) .
Criminal offenses
Criminal infringement
17 U.S.C. § 506(a) provides that an infringer faces criminal liability in two situations:
- When their infringement is "for purposes of commercial advantage or private financial gain."
- When they distribute "1 or more copies or phonorecords of 1 or more copyrighted works" with a total value of greater than $1,000 within any 180-day period.
Criminal infringement is punishable by up to ten years in prison (for repeat offenders). See 18 U.S.C. § 2319.
Circumvention
The DMCA contains provisions to criminalize the circumvention of copy protection technology. See 17 U.S.C. § 1201 et seq. These provisions have been used to stop a variety of activities. The publishing of DVD decryption code was deemed illegal in Universal City Studios v. Corley, 273 F.3d 429 (2d Cir. 2001). Later, in U.S. v. Elcom, 203 F.Supp.2d 1111 (N.D. Cal. 2002), anticircumvention law was used to enjoin the publication of software that could convert copy-protected Adobe eBooks to unprotected PDF files.
One unintended consequence of the anticircumvention law was a flurry of litigation involving producers of after market accessories for electronic devices. Two cases decided in 2004 made it clear that the DMCA would not cover such anticircumvention claims. In Lexmark Intl. v. Static Control Components, 381 F.3d 1178 (6th Cir. 2004), anticircumvention protection was denied to a printer manufacturer after another company reverse engineered codes for its proprietary ink cartridges. In Chamberlain v. Skylink Technologies, 381 F.3d 1178 (Fed. Cir. 2004), the court ruled that buyers of garage doors were free to reverse engineer the code on their garage door opener, since otherwise they couldn't open their own garage.
Other offenses
- Publishing of a fraudulent copyright notice, or fraudulent removal of a copyright notice, is punishable by a fine of up to $2,500. 17 U.S.C. §§ 506(c)-(d).
- False representations in a copyright application are punishable by a fine of up to $2,500. 17 U.S.C. § 506(e).
Defenses
Fair use
The most common defense to copyright infringement is fair use. It is a highly vague (and therefore highly versatile) doctrine. The Copyright Act provides (17 U.S.C. § 107) that a finding of fair use depends on:
- The "purpose and character of the use"—e.g., whether it is for profit or for educational purposes.
- The "nature of the copyrighted work."
- The "amount and substantiality of the portion used in relation to the copyrighted work as a whole."
- The "effect of the use upon the potential market for or value of the copyrighted work."
While all four factors must be considered, they are not exclusive: courts can (and do) consider other factors in ruling on whether use of a copyrighted work counts as fair use. Examples of fair use include:
- Parody, most likely to be found when the work is criticizing the original upon which it is based.
- Copying for personal use, such as the "time shifting" permitted by Sony, the "space shifting" permitted by Diamond and photocopying of books for research purposes. But if such copying is used to escape licensing provisions (as may be the case with software or technical journals), it may not be considered fair use.
License
A person may copy a copyrighted work if the original author has given them a license to do so. Licenses are often in writing, but they need not be: if the copyright owner gives verbal consent to another person, that person is legally entitled to copy the work to the extent allowed by the owner. Note, however, that transferring the entire copyright requires a written contract or deed.
More precisely, an exclusive license gives the "licensee" (the recipient of the license) the right to prevent others from using the work. An exclusive license must be in writing. A non-exclusive license allows the licensee to use the work, but does not give the licensee the power to grant or deny a license to anyone else. A non-exclusive license does not have to be in writing.
Copyright misuse
Copyright misuse is a fairly recent (and not universally accepted) doctrine that seeks to prohibit the use of copyrights for anti-competitive purposes. It is connected to antitrust law and derived in part from the patent misuse doctrine.
Statute of limitations
Under 17 U.S.C. § 507, a civil suit for copyright infringement can only be brought within three years "after the claim accrued." A claim accrues every time a work is illegally copied and every time an infringing work is illegally sold or transferred, so statute of limitations defenses are usually very difficult to successfully assert. Also under § 507, the statute of limitations in criminal cases is five years.