Lets use a book because it’s a little easier to grasp without techno-crap
Person A has a copy of a Harry Potter
Person A photocopies the Harry Potter book, gives it to Person B
Scenario 1: Person B then reads the photocopied book and gives it to Person C, for free.
Scenario 2: Person B then makes a photocopy of his photocopy and gives it to person C, edit: for free
It’s clear that Person A violated copyright
Has person B committed a copyright violation (civil variety) in one or both scenarios?
Has person C committed a copyright violation (civil variety) in one or both scenarios?
You cannot, without permission, make a copy of a book. That’s what copyright means, the right to control who makes copies.
One the violation is committed, nobody else gets a free pass. It’s easy to see how great the abuse could be if one person took the fall, but the millions who benefited suffered no penalty. You also can’t argue ignorance of the original violation if there is reason to think you should have known. Ask those people who spend the $1,000,000 that a bank error puts into their account or buy an HDTV off the back of a truck for $50.
I’m answering the question under the letter of the law, not what would happen in practice. That sends the whole thing careering off into GD, which I’m sure will happen anyway within the first 6 posts.
IANAL, but I assume that possession starts the violation. It’s a photocopy of a book. Unless it contains a statement of approval by the copyright owner, it’s prima facie evidence of a violation. If you are told in advance that the book is a photocopy, you may be liable as soon as you order and pay for it.
If you’re really looking for that level of technicalities you need a lawyer in here.
B has been given an infringing copy, but he hasn’t violated any of the copyright holder’s rights. B is liable when he makes a copy for C. C is not liable.
There are, of course, nuances; there might be some liability for vicarious or contributory copyright infringement or regular infringement depending upon the intent (Say B asks A to make a copy of the book, loans him the photocopier w/ knowledge, or lets A sell his copies in B’s store). These scenarios get tricky very rapidly, depending upon the intent of the parties and their participation and knowledge. For normal purposes, assuming innocent parties who just got the book as a gift, B and C are not liable except when B makes his own copy.
Even knowingly purchasing counterfeit/infringing works doesn’t open the purchaser to normal liability.
Now, under the 1909 act, possession of an infringing work incurred liability, but that sort of liability no longer exists.
Criminal infringement does have its own tricks, but you stated civil, so I’m not going to go into them.
Sec. 106 of the Copyright Act of 1976 gives owners six exclusive rights: the right to copy, create derivative works, distribute copies, perform certain works, display certain works, and perform sound recordings via “digital audio transmission.” (Those rights are limited in certain ways by other sections in the Act.)
So in the first scenario, person B is infringing the copyright by distributing an illegally-copied work. (Sec. 106 specifically says distribution by sale “or other transfer of ownership,” which would include giving away.)
In the second scenario, B is infringing, both by making a second copy and distributing that copy.
The first sale doctrine, which allows you to give or sell a copyrighted work without care, doesn’t apply here because it’s limited to legally-copied works. That is, if B bought the book at Borders and gave it (or sold it!) to C, that’s fine. But that’s only OK for a legal copy you’ve got; not an infringing one.
I do agree with ivn that there’s no liability for C, or for B just for getting the photocopy from A. It’s only when B takes a positive infringing act – making a later copy, or distributing his illicit copy – is there infringement on his part. (I think there’s something about importing copyrighted works, too, elsewhere in the statute, but it’s been a long time since I took my Copyrights class.)
Looking back on the statute, I think you might be correct. I don’t have time to look at the case law, but I do recall there was some controversy about “distributing” including passing on your only copy without knowledge of it’s infringing status. But going by the house report and the language in 109, it probably doesn’t apply here.
I might look tomorrow for cases if I have time, but I’ll provisionally agree.
I’m not sure about that. I am definitely not a lawyer, but… I do believe in the recent spate of copyright infringement suits by recording industry players against users of KaZaA and other peer-to-peer systems, people have been held liable for infringing not only works they are sharing, but works they have downloaded. In the hypothetical, how is B’s position any different from somebody who logs into KaZaA just to download a copyrighted work?
The RIAA hasn’t actually sued anyone yet for downloading. The crux of all of the RIAA cases is the uploading of the files. The same applies to the software piracy cases in the criminal sphere.
ETA: Just to clarify, the difference in this case would be that B hasn’t made a copy. The RIAA’s position, should it come to trial, would be that the act of downloading is actually creating a copy, so B would be liable for violating the right to copy.
In Sony v. Tenenbaum, they were indeed suing Tenenbaum for distributing files, but evidence was introduced to prove that some of the files he was sharing were files that he had downloaded himself, not files that he’d ripped from legitimately-purchased CDs. Why would this be considered material, if the act of downloading were not itself an infringement?
So suppose you ask me for a copy of the latest Lady Gaga single. If I say, “Sure, I burned it on a CD for you,” then I am guilty of infringement, but if I say, “Sure, come downloaded it from my server,” we both are? Sounds a bit sketchy to me.
That just doesn’t sound right. I’ve an autographed book I got at a book signing. I want to keep it pristine in the bookcase. I copy it for my own personal use, to read an mark up. You sure I have done something wrong.