Parental Liability for Online Infringement Conduct by their Kids

Introduction

This is general information for persons of all ages to better understand potential legal risks of using the internet.

Parents should be on notice that you might be held legally liable if your kids get caught downloading and/or sharing copyrighted media, such as adult movies, video games, music, or even software.  This blog will explore the law in California & Arizona (9th Circuit) where we practice law.  This blog will explore case law regarding indirect liability in the U.S. Court of Appeals for the 9th Circuit (which includes California and Arizona).

Record Companies and Video Producers are two “hawks” in this area of law

Record companies or video production studios may attempt to bring claims against you, as parents of children, who allegedly infringe copyright law by illegally downloading and/or sharing copyright protected materials.  Many parents have no clue what their kids are doing online, and most just assume they are “chatting” with their friends, goofing around on facebook or twitter, or searching google for this or that.  What they don't know however  is that their kids may also be illegally downloading pornography, music, or movies on file sharing websites such as .  This can create potential legal issues the family would rather avoid.  In these types of cases, the plaintiff's may bring a claim against the kid 18 years or older, or may also seek to sue the parents under the legal theory of “indirect liability.”   Or, they may sue under a specific state's parental liability statutes.

Are record companies or media production companies bringing lawsuits against parents of children who allegedly download and share media illegally?

Yes, they have.  In 2003, the Recording Industry Association of America (“RIAA”) and the record companies that are members of the industry started to bring lawsuits against individuals including parents.  In the lawsuits, they accused the individuals of copyright infringement for allegedly using various file-sharing applications, programs, and services, to share or exchange copyrighted music on the internet.  In many of the lawsuits, the claim was against either the minor child or her parents, where the parents did not directly participate in the activities of the child.

Keep in mind, the potential liability in these cases can be staggering with copyright infringement lawsuits that can include fines of up to $150,000 per illegally downloaded title – under the Copyright Act, and costs and attorney fees.

How were parents able to be implicated although they were not directly involved in downloading?

Under the legal theory of indirect liability, even if a person is not a direct infringer, they can nonetheless still be liable for the infringing acts committed by another.  While the Copyright Act of 1976 does not explicitly recognize the possibility of indirect liability, courts have generally held that third parties liable for copyright infringement under indirect liability.  Courts use two well established common law doctrines to institute this: vicarious liability and contributory infringement.

Case example:  A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).

A parent may be held vicariously liable for copyright infringement if he or she has:

• the right and ability to supervise the infringing activity and;
• if the parent received a direct financial benefit from the infringing activity.

This is the same test we have talked about in our software infringement cases

Supervision

The Napster case talked about the first prong of the test:

“The ability to block infringers' access to a particular environment for any reason whatsoever is evidence of the right and ability to supervise.”  Napster, 239 F.3d at 1023.  In Napster, the court found that the owners of Napster had the ability to impose a structure of policing copyright infringement but failed to do so.  Parents generally have the right and responsibility to control the behavior of their child, especially when the child and parent live in the same house.  In this day and age, children share a high volume of files at home, using computers or devices that more often than not, have been purchased by the parent(s), and are also used by the parent(s).

In a Massachusetts district court copyright infringement case from 2009, it was suggested that a parent should be on notice of the likelihood of illegal file sharing by their children because of the frequency of file sharing by children within the home, and that parents should be held responsible for policing such activity.  See Capital Records, Inc. v. Alajuan, 626 F.Supp.2d 152 (D. Mass. 2009).   Although the 9th Circuit has not yet applied this line of reasoning, it is easy to see how a court would agree with this logic in deciding a case in either California or Arizona or in any other state covered by the 9th Circuit Courts.

Financial Benefit

As to the second prong of the above test, while parents generally have the right and responsibility to control the behavior of his or her child online, proving that the parents have gained a direct financial benefit from the child's activity online is a bit more challenging to prove.  It could be argued that by allowing the child to download music illegally, the parents are saving money in not having to purchase the music on Itunes, or buy a subscription to Sptofy for example  Thus, the parents are avoiding the need to purchase the music for the children by allowing them to continue downloading without any household rules against the practice and “turning a blind eye.”  The parents' motive in cost saving is similar to the reasoning in Napster.

Increase in users as a form of financial benefit

In Napster, the future revenue of the company was found to be directly dependent upon “increases in user base.”  Napster, 239 F.3d at 1023.  Subsequently, allowing infringing activities to occur would in turn increase the attractiveness of Napster, ultimately leading to an increase in their users.  The court found that Napster's motive in increasing their user base was analogous to receiving a financial benefit.

As we progress forward in this technological age, parents must pay close attention to their children and their downloading and file sharing activities on the internet.  Videos, songs, software, and video games are getting easier to share with each passing day especially with file sharing websites such as Kazaa and .  While it is difficult to predict with precision which way a court would ultimately rule, it is worth understanding the types of precautions that should be taken in order to limit your liability as a parent to avoid a costly copyright infringement action.  Lay down some ground rules, teach your kids about intellectual property, make them aware that theft online is basically the same as theft offline.

Can a parent be held civilly liable for Contributory Infringement for their child's downloading media online?

Under the alternative theory of contributory liability, a third party 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.”  Gershwin Pub. Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159 (2nd Cir. 1971).

Let's take a look at these elements.

Knowledge

Courts require proof of actual or at least constructive knowledge of the specific infringing activity in order to find contributory liability.  See Napster, 239 F.3d at 1021.

Case example:  Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984).

In the Sony case, the U.S. Supreme Court decided whether manufacturers of home videotape recorders could be held liable for contributory infringement.  The Court held that Sony did not have to have actual knowledge of the infringing uses.  The Court reasoned that it was sufficient that the defendant have reason to know that infringement is taking place, and that actual knowledge is not required to find contributory infringement.  Thus, constructive knowledge is all that is required to constitute contributory liability.

For parents in internet download infringement cases, including () if the plaintiff can prove that the parent had reason to know that the infringement was taking place, or that the child has been committing the infringing activity within the home, the parent may be found to be liable.  Of course, there must be a finding of knowledge and material contribution to establish contributory liability.

This could happen where a parent watches the film or video with the kid (ex. Dallas Buyer's Club or London has fallen). and the kid says “yeah, I downloaded this for FREE off of PiratesBay.com.”  The parent would be wise to ask “what is pirates bay” or “what do you mean for free?”  If not, it could be seen that they are “materially contributing” to copyright infringement.

Material Contribution

Case example:  Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir, 1996).

Several courts, including the 9th Circuit, have held that in order to establish material contribution, a Plaintiff must “provide the site and facilities for the known infringing activity.”

In Fonovisa, the Court held that an operator of a swap meet satisfied the material contribution requirement because the operator provided the means for individual to sell bootleg audiocassettes.  The Court found that “it would have been difficult for the infringing activity to take place in the massive quantities alleged without the support services provided by the swap meet.”  Overall, the defendant was also found to have undisputed knowledge of the infringing activity, and therefore, was found to be contributorily liable – satisfying both the knowledge and material contribution requirement.

In another case the Court held:

“For parents who may be liable for their child's actions illegally downloading media, in order to establish material contribution, the parents must have caused, induced, or materially contributed to the infringing activity.  Gershwin, 443 F.2d at 1162.  By using the logic from Fonovisa, by simply supplying their child with access to a computer and internet access, the parents would most likely be found to be providing the means to accomplish illegal downloading.

As in Fonovisa, if the parents provided the “site and facilities” for the infringing activity, or, allowing the child to download from a computer they have supplied inside the home, they will most likely be found to have materially contributed to the infringing acts of the child.”

Have there been any recent copyright infringement cases that involve parents of file-sharers?

Yes.  In Capitol Records, Inc. v. Foster, No. 041569, 2007 WL 1028532 (W.D. Okla. Feb 6, 2007), the Western District of Oklahoma heard a case that dealt with this exact issue.

Capitol Records claimed that by allowing the (parents) defendant's daughter to download music on the family's computer, the parents contributorily contributed to the copyright infringement.  Capitol Records argued that because a Kazaa icon was located on the “family computer” desktop, it was evidence that the parents had knowledge of and materially contributed to the alleged infringement.  This could create an interesting dilemna for parents, many of whom know nothing about which icon goes to which application, and what that application actually does.  Applying this rationale, the court disagreed.  It dismissed claim, holding that “merely supplying means to accomplish infringing activity cannot give rise to imposition of liability for contributory copyright infringement.”

While the holding of this case may only binding in a specific jurisdiction, other courts may or may not find the decision to be persuasive.  In other words, other courts in Arizona or California may not agree with this holding, and they do not have to follow this holding. Should a similar case be brought in either Arizona or California, a similar analysis may yield very different results.  Therefore, it is paramount that if you suspect your child to be downloading media on the internet, contact a reputable intellectual property attorney.  We are here to help you.

Is there any liability based on my state's Parental Liability Statutes?

It depends!  Maybe it's not the answer you are looking for, but it really just depends on your state.  Let's examine two of the states where our law firm can help represent you in copyright infringement suits:  California & Arizona.

California

According to Cal. Civil Code § 1714.1:

(a) Any act of willful misconduct of a minor that results in injury or death to another person or in any injury to the property of another shall be imputed to the parent or guardian having custody and control of the minor for all purposes of civil damages, and the parent or guardian having custody and control shall be jointly and severally liable with the minor for any damages resulting from the willful misconduct.

Additionally, in California, parents are “jointly and severally liable … for any damages” up to $25,000 “resulting from the willful misconduct” of the child.  See Cal. Civil Code § 1714.1(b).  This statute has been applied to damage to intangible property as well as tangible property, meaning that copyright infringement is fair game.

This statute could create legal liability issues for parents whose kids are served a subpoena from an ISP alleging illegal download.

Arizona

In Arizona, according to A.R.S. § 12-661:

(A.)  Any act of malicious or willful misconduct of a minor which results in any injury to the person or property of another, to include theft or shoplifting, shall be imputed to the parents or legal guardian having custody or control of the minor whether or not such parents or guardian could have anticipated the misconduct for all purposes of civil damages, and such parents or guardian having custody or control shall be jointly and severally liable with such minor for any actual damages resulting from such malicious or wilful misconduct.

Similarly, in Arizona, parents are jointly and severally liable … for any actual damages up to $10,000 for each tort of the minor.  A.R.S. § 12-661(B).

What about the Copyright Act? Do I have some type of protection against state tort statutes regarding copyright infringement issues?

PREEMPTION: Even if state law establishes parental liability based on the tortious actions of their children, the copyright infringement action as it relates to state law may be expressly preempted by § 301 of the Copyright Act, which is a federal law.

If the state law is “equivalent to any of the exclusive rights within the general scope of copyright” then §301 bars all claims under the state law relating to copyright infringement.  In other words, if the parental liability statute of your state is explicitly founded on an underlying violation of the rights outlined in the Copyright Act, the claim cannot be brought under the state law.

An analysis, called the “extra-analysis” test is required in order to find discover whether the state law is preempted by the Copyright Act.  Alternatively, a court may also hold that a claim based on a state parental liability statute may still be precluded based on conflict or field preemption.  The court generally will analyze whether the state law may be preempted by the Supremacy Clause of the

Copyright Infringement Resources

1. Music Copyright Infringement – Case List
2. About Piracy Online
3. $675,000 Penalty for Illegally Downloading Music
4. Copyright Infringement – wiki
5. Copyright Infringement – Vondran Legal

If you received a copyright infringement notice from your ISP or subpoena call to discuss your case with an attorney

We can assist both copyright holders and those accused of copyright infringement, whether directly, or indirectly through vicarious or contributory infringement.  We can help bring Plaintiff cases or defend those accused of online piracy by various file sharing activities.  Call to discuss your case with one of our team.  We can be reached at (877) 276-5084.  We take federal copyright cases nationwide.  We look forward to working with you.