CHAPTER 4 I DIDN’T KNOW! P AR T 1: S T R I C T L I A B I L I T Y When faced with allegations of copyright infringement, “I didn’t know!” is often the first thing people say. Copyright law’s response is a cold, “I don’t care!” Under copyright law it simply P a g e | 150
doesn’t matter what you knew at the time you committed the infringement. TIP: Copyright infringement is determined without regard to the intent or the state of mind of the infringer, and even the most innocent intentions and accidental actions will lead to liability for copyright infringement. Our legal system typically only imposes liability for money damages when the defendant was shown to be negligent or somehow intended to bring about an injury or damage to another. Copyright is one of the exceptions where all you need to prove is there was an injury (infringement), and the defendant caused it. The legal buzzword for this category of exceptions is “strict liability crimes.�
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Strict liability crimes historically applied to activities that are considered dangerous, such as activities involving dynamite that our surveyor appears to be getting into on the next page. Copyright Boundaries
Crossing the “metes & bounds” of our surveyor’s “copyright property border” results in “strict liability” similar to the legal liability imposed by the use of dynamite.
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TIP: Federal copyright law provides a very straightforward standard for copyright infringement: “[a]nyone who violates any of the exclusive rights of the copyright owner� is liable for copyright infringement.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (I Didn’t Know)
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http://thetradesecretsofintellectualproperty.com/
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CHAPTER 4 I DIDN’T KNOW! P A R T 2: W H Y D O W E P R OT E C T A R T I S T S WITH STRICT LIABILITY? Before we get too critical of the strict liability standard it is important to understand why copyright works in this way. Congress (and most other nations around the world)recognize that artists and creative people need to be protected. As a society we value “art.” Art, broadly defined, includes P a g e | 155
photographers, website designers, film makers, sculptors and crafts people. In an America that prizes the First Amendment to the Constitution – the right to Free Speech and Free Press – artists and social critics must be protected and incentivized. As a society we want to be challenged with art and value those who have the gift to see the often unseen parts of the human soul and manifest it in things as simple as a picture of the dew on a cherry blossom. The issue that copyright law faces in protecting these folks is that, historically, copyright infringement has been difficult to prove.
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Copyrights are Beautiful
Copyrights can Incentivize “Cherry Blossoms”
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Rhetorically, what good is a law that only gives “lip service� to protecting those peoplelike artists and news makers- that we value? What good is a law that allows creative people to be ripped off easily and makes enforcing their copyrights difficult, if not impossible? That is why the law has adopted the strict liability standard.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (I Didn’t Know)
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http://thetradesecretsofintellectualproperty.com/
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CHAPTER 4 I DIDN’T KNOW! P AR T 3: T HE S T A T U T O R Y D A M A GE S CAVEAT Later, in the chapter on damages, we will go into a special kind of damages allowed by copyright law- it’s called “statutory damages.” Statutory damages or “enhanced damages” look at “state of mind” or more accurately the “level P a g e | 160
of culpability” (how bad is the infringer). Statutory damages mostly give artists “enhanced damages” if they can show that a particular infringement was done “willfully.” For basic copyright infringement, however, (seeking actual damages) the infringer’s intent does not matter. This is what we call, “strict liability.”
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (I Didn’t Know)
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http://thetradesecretsofintellectualproperty.com/
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CHAPTER 4 I DIDN’T KNOW! P AR T 4: W H A T
IS
STRICT
LIABILITY ?
Strict liability means a person can be liable even when they are not at fault and have taken every possible precaution to comply with the law. P a g e | 163
Clearly this is a very harsh standard, which is why it is used very rarely in our legal system. The harshness of strict liability is generally accepted because it provides more protection to the public in areas where Congress recognizes that such protection is necessary. Our surveyor will be liable for damages from the following explosion (assuming he survives), even if he took every possible precaution to prevent it. What this says for copyright law is Congress has recognized that protecting copyright is so important they are willing to apply such an extreme standard. Strict liability statutes often address so-called“public welfare� offenses, which could seriously affect the health, safety, or welfare of the public.
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Copyright Boundaries
Strict liability is imposed for damages caused in demolition and copyright infringement (two examples) even if you took every precaution to avoid it!
As a society we believe a lack of copyright protection would seriously harm the public P a g e | 165
welfare, which is why they decided to impose such a high standard. TIP: Some extreme groups on the internet believe that “everything should be free.� Like the communists of the Cold War they do not believe in private property and the reward system offered by Capitalism. Be CAREFUL of their rhetoricprotection of Copyrights is an almost universal value in modern society and is largely bipartisan, even in the United States. Strict liability is also commonly associated with storing explosives, defectively manufactured products, emitting toxic fumes, blasting, trespass of wild animals, accumulating sewage, and driving offenses such as speeding. As you can see, strict liability is a severe standard that is only applied to very dangerous activities. P a g e | 166
Modern society and the law thinks it is dangerous to the progress of science, expression, and knowledge if copyright protections are not strict enough to encourage innovators and creators to make things that change the world for the better.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (I Didn’t Know)
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http://thetradesecretsofintellectualproperty.com/
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CHAPTER 4 I DIDN’T KNOW! P AR T 5:
C UL PA B I L I T Y ON L Y M A T T E R S F OR “ E N H A N C E D D A M A G E S ”
As previously discussed, the infringer’s state of mind or the egregiousness of the copyright infringement has no bearing on actual P a g e | 169
damages in a copyright case. Statutory damages are an “enhanced damages” option available to copyright holders who have registered their copyrights. In pursuing the enhanced damages courts look at the level of culpability an infringer had: how bad was the infringer? That, in turn, dictates how “enhanced” the damages will be. The enhanced damages regime has nothing to do with “actual” damages- which are determined on a strict liability basis.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (I Didn’t Know)
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http://thetradesecretsofintellectualproperty.com/
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CHAPTER 4 I DIDN’T KNOW! P AR T 6: T HE “S T R I C T
LIABILITY ” M YT HS O F C O PY R I G H T L A W
Here are some of the myths of “strict liability de-bunked.
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Myth Busters No. 9
“I can copy a copyrighted work if I don’t plan to make any money on it” Someone’s intent, or “plan,” has nothing to do with whether or not they can be found liable for copyright infringement. You can have the best intentions in the world, but if you end up copying a copyrighted work you will be legally liable for that copying. It does not matter if you do not plan on profiting from the copyright infringement because the point of copyright law is that the owner gets to decide who uses their work. It is also up to the owner, and only the owner, to decide what context their copyrighted work is featured in. If it’s your work, it’s your choice.
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Myth Busters No. 10
“I’m not liable for copyright infringement because I didn’t know the work I copied was copyrighted.”
Once again, what you knew at the time of the alleged infringement has no bearing on whether or not you will be found guilty of infringement. You may have to pay less in damages than someone that knew he was committing infringement but you will still be liable. A good rule of thumb is to assume that anything eligible for copyright protection is copyrighted.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (I Didn’t Know)
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http://thetradesecretsofintellectualproperty.com/
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CHAPTER 4 I DIDN’T KNOW! P AR T 7: J US T T HE E S S E N T I A L S “S T R I C T L I A B I L I T Y ”
OF
Here are the “essentials” of the “Strict Liability”.
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Just the Essentials
“Bite Sized”
Damages under strict liability are often limited to “actual damages” as opposed to the special form of damages offered by copyright law called, “statutory damages”. Be careful not to mix them up!
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Just the Essentials
“Bite Sized”
Copyright is a strict liability tort. That means the “state of mind” doesn’t matter. You are guilty of copyright infringement even if it was on accident or you didn’t know.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (I Didn’t Know)
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http://thetradesecretsofintellectualproperty.com/
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