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Don’t Get in Trouble With Contributory Infringement

West Palm Beach Business Litigation Attorney 2023-01-26 16-48-30

As a business owner, you likely (hopefully) respect others’ intellectual property rights, and would never just blatantly infringe on others’ copyrights. But what about helping someone else infringe? That can get you in trouble as well—even if you’re not the one actually doing the infringement.

What is Contributory Infringement?

It’s called contributory infringement, and it can get you in trouble even if all you’re doing is just assisting someone else in committing copyright infringement.

Creating an illegal copyright product takes more than one party. For example, imagine a typical counterfeit purse. That purse needs to be shipped into the country, it needs to have the zippers and hardware that the original manufacturer uses, it needs to use the same stitching, and other elements. It needs to be advertised.

That means a lot of parties—and if a business supplies any of these products or services to the infringer, that business can be liable for contributory infringement.

The Napster Example

This is exactly what happened to music file sharing service Napster. Napster was a website that served as a clearinghouse for people to share copyrighted music with each other. Napster itself was just a platform; it didn’t sell copyrighted music or upload the music or copy anybody’s music or even make money directly from the music.

But because it made copyrighted music accessible to others who were getting it for free, Napster was shut down.

Knowledge and Intent

To have liability or contributory infringement, the liable party must have knowledge of what it is doing. If a business makes zippers and some of them end up on copyrighted purses, there is likely no liability. But if it is purposely providing those zippers to a company it knows is making knock off purses, there is likely liability.

Vicarious Liability

Contributory infringement requires specific knowledge that the party is contributing to infringement. But vicarious liability does not. A parent company, or a company that has an employee that is infringing, can be liable vicariously, even if it wasn’t aware of the infringement or intended to infringe.

Hosting Items for Sale Online

Many people or businesses will run afoul of the contributory infringement doctrine, when they host items for sale that are put there for sale by other people—think of eBay or Poshmark, for example. But even though these companies can be held liable for contributory infringement, there is a safe harbor for those who respond quickly to notices of infringement.

That’s why companies should have a written policy to handle notices of infringement, and why many companies will immediately take down information or products that another party says infringes on their intellectual property.

There should also be a policy in place to stop posting, hosting, or advertising, for those sellers that repeatedly draw intellectual property infringement notices. Many sites will permanently ban sellers who get routine infringement notices.

Do you have an intellectual property or infringement legal issue? Call the West Palm Beach business litigation attorneys at Pike & Lustig today for help with your business’ legal needs.




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