Patron Streaming Content and Library as a Contributory Infringer

Submission Date:

Tuesday, September 3, 2019

Question:

Answer:

As the member shows here, there are a lot of questions within the big issue of “contributory infringement” via use of the internet in libraries.  And because they all relate to legal liability, they are scary for library staff and leadership.

To take the edge off that fear while defining “contributory infringement,” please enjoy this bad joke:

“Knock-knock.”

“Who’s there?”

“Contributory infringer.”

“Contributory infringer who?”

“Contributory infringer who is liable if, knowing of infringing activity, induces, causes or materially contributes to infringing conduct of another.”

Ouch.  Sorry.  I know that really wasn’t funny.  I have been teaching knock-knock jokes to my 5-year-old daughter, and they are harder to write than you’d think. 

But while the joke was bad, the definition was good.  So, what is “contributory infringement?”  All (bad) jokes aside, contributory infringement—when a person/entity aids to infringement—is a recipe for serious liability, with the contributor “jointly and severally” liable along with the main infringer.

And yes, as the quote from the MPLA says, unlicensed exhibitions of movies in a library can result in a finding of liability for the library. However…

The MPLA is representing an industry.  This “warning” statement is a good example of an industry taking advantage of the complexity of the law to issue a statement that, unless carefully unpacked, will make the reader fear assertions that are grossly overbroad. 

Deconstruct the statement.  As the member fears, at a superficial level it seems to state that every copy of motion picture content accessed through a library’s wi-fi and played on any device might be a “contributory infringement” without a license.  Ouch.  That would be a recipe for disaster, indeed. 

But this is a typical industry over-step.  Fortunately, we fight such over-steps with information, and information is the librarian’s stock-in-trade.

Entire books, law journal articles, and Supreme Court opinions have been written on this topic, but I am going to focus on three bits of practical information that address the member’s concerns.

First, there are obviously sections of the Copyright Act that allow performances of audio-visual works in a library that would otherwise be infringing: Section 107, 108, and 110,[1] depending on the circumstances (including the type of library) can all apply.  I won’t unpack these sections here—the applications are too fact-specific—but let’s just say: “There are ways.”

Second, a user accessing content on a library computer may be doing so under their own personal license (Hulu being a possible example).  There is no requirement[2] in the Hulu license that a user access their personal Hulu account on a device they personally own; in other words, there is no concern if they access it on a library computer (so long as it is only for personal use).  On the flip side, there is no permission from Hulu to use my personal account, via my personal computer, to show a movie to 20 unrelated people and charge admission. So, it’s not so much about the streaming, as what I do with it.  This will vary from platform to platform, but the conditions of use will be in the license.

The third factor is the most important for this question, and is what the rest of this response is about, since it applies to the majority of the member’s hypothetical concerns.

To combat the fear that any re-posting or access to audio-visual copyrighted material via a library user account, website, database, or wi-fi connection is a potential infringement the library could be contributing to, every library should register under the Digital Millennium Copyright Act (“DMCA”), and have a policy for responding to reports of infringement.

Why?  Because under the DMCA, service providers may avoid liability for copyright infringement that occurs "by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider." [3]

This arrangement allows services like news aggregators (think Huffington Post), content providers (think YouTube) and internet access providers (think Verizon) to function without performing a chilling gate-keeping function, giving them what’s called a “safe harbor” from contributory infringement. 

To qualify for this “safe harbor,” a library must be ready to show that it:

(A) (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(C) upon notification of claimed infringement . . ., responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

So powerful is this “safe harbor,” that sites hosting infringing content are routinely found non-liable, so long as they designate a DMCA “agent” with the Copyright Office and meet the above elements[4], and can show they acted promptly when the agent was notified of alleged infringement.

Of course, any library considering this approach must do so with its eyes wide open.  The DMCA is not beloved by libraries; the ALA has some choice criticism of the advantages the “notice and takedown” process gives content owners, and the rough road the process presents to fair use.[5]  Nevertheless, the DMCA remains a legal tool that addresses all of the member’s hypothetical concerns and solutions.

To illustrate, let’s run through the member’s examples a bit. 

First, the member lists the different types of technology access and use that could be used as a basis for a claim of contributory infringement.  The member is right to be concerned, because regardless of the ownership or type of device used in the library (library computer, or patron-owned device, phone, tablet, desktop computer), if an unlicensed movie is being shown at the library (with or without the use of library wi-fi), it runs the risk of being an infringing performance.[6]  But so long as the library is not aware of someone using the library’s wi-fi or website to show, post or share infringing content (or the use is not so flagrant that the library “should have known”), and the library meets the other elements listed above, DMCA “safe harbor” can apply.

Of course, this means the library must be able to show it does not have “actual knowledge” that an infringing performance is happening.  If the library is hosting obviously infringing activity (like a person sitting on top of the reference desk ripping movies in plain view while singing “I am pirating a copy of “Lego Batman, hooray!”), “safe harbor” might not apply.  But if the library is hosting someone quietly accessing a copy of “Lego Batman” on their personal computer (perhaps with a future fair use defense due to using the content in a documentary on deconstructing traditional notions of masculinity via comic-book-based animated children’s movies), and the library has no knowledge of the action, it would be tough to show “actual” knowledge. 

NOTE: again, this tension, and the fact that what looks like infringement can often be a fair use, is one reason the ALA and others have an issue with the DMCA.

How does a library relying on the DMCA determine the line between genuine lack of awareness and what it “should know”?  A library’s bar on using library resources for obvious and intentional copyright infringement should be in both its internet use policy, and its patron code of conduct.  “Obvious and intentional” use of library resources to infringe copyright can include:

• Making multiple unauthorized copies of articles;
• Screening movies to a group without a license;
• 3-D printing patent-protected medical devices.

These examples all bring serious intellectual property concerns, and libraries must be positioned through policy to deal with them.  But through a combination of the DMCA and respecting patron privacy, libraries do not need to consider blocking access or specifically restricting specific content to avoid contributory infringement.[7]

It’s an imperfect balance, to be sure.  The ALA and others are right to hold the line on concerns with the over-use of the “notice and takedown” provisions of the DMCA.  But within that imperfect system is the secret to the member’s concerns.

The member’s final three questions are:

Does this mean that we have to block access to these sites or provide proactive messaging at each computer, and/or monitor their computer use?

Should messaging that addresses this issue be included in our wi-fi and/or computer use policy?

Is this something that if we provide computer screens or privacy walls we would reduce or eliminate our role as a contributory infringer?
The answers to these questions are:

• To limit liability under the Copyright Act, there is no requirement to block, seek out, or repeatedly warn against infringement.[8]
• That said, outright theft of intellectual property should be prohibited through library policy and internet/computer access agreements, and observable violations should be addressed through a patron code of conduct.
• Liability for contributory infringement can be reduced by following the DMCA.
• Policies and design that ensure the privacy of users and the confidentiality of patron records can contribute to the reduced liability brought by the DMCA.

Thank you for a good, complex question.  For libraries that have not yet done so, a DMCA policy and registered agent are worth (very carefully) considering.

Tag:

Copyright, DMCA, Fair Use, Policy, Streaming