Under the Copyright Act, anyone who violates any of the exclusive rights of the copyright owner is an infringer of the copyright. On top of that, the Supreme Court has also recognized two categories of secondary liability. Secondary liability happens when a party is liable for the copyright infringement of another. Those two categories are “contributory” liability and “vicarious” liability.
Contributory liability has been in the news lately as the Supreme Court provided its decision on Cox Communications, Inc. v. Sony Music Entertainment. Contributory liability requires that a party intends its service to be used for infringement. First, a copyright owner can show that the other party affirmatively induced the infringement. Second, the copyright owner can show that the party sold a service tailored to infringement.
You can see how an internet service provider could be involved in discussions about contributory infringement. Not just discussions, but this court case that went all the way up to Supreme Court. Sony Music saw that a whole lot of their materials were being illegally uploaded or downloaded by Cox Communications users. A “whole lot” means that during a roughly two-year period at issue, Cox Communications received 163,148 notices identifying IP addresses of Cox subscribers associated with infringement related to Sony Music materials.)
But the Court found that just because a lot of people use Cox Communications’ services to do bad things, it doesn’t mean that Cox Communications is at fault. The Court said that the provider is contributorily liable for a user’s infringement only if it intended that the provided service be used for infringement. That intention can be shown only if the party induced the infringement or the provided service is tailored to that infringement. Cox Communications neither induced its users’ infringement nor provided a service tailored to infringement. Accordingly, Cox Communications is not contributorily liable for the infringement of Sony’s copyrights.
Or in other words, Cox Communications provides services built to allow lots and lots of people do legal things. Just because some people do bad things (even anticipated bad things) doesn’t mean that the services were built for the bad things. This wasn’t Grokster.