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What to know about contributory copyright infringement

February 27, 2024
April May 2024 Cantor Colburn IP Newsletter

Contributory copyright infringement — when a defendant causes or significantly contributes to another’s infringing activities and knows of the infringement — is often misunderstood. The U.S. Court of Appeals for the Tenth Circuit has now provided some welcome clarity for a frequent point of confusion: the types of behavior that support a contributory copyright infringement claim.

Trolling triggers lawsuit

In 2016, Russell Greer became the target of a harassment campaign on a website known as Kiwi Farms. The site, owned and operated by Joshua Moon, was built to showcase people who Moon and the website’s users considered eccentric and weird. The harassment was done via phone, email and social media.

Eventually, Greer lost his job and was evicted. In response, he wrote a self-published book. Although the book was copyrighted, it made its way onto Kiwi Farms through a Google Drive link to a full copy. A song copyrighted by Greer was also later posted on Kiwi Farms.

Greer sent Moon and the site takedown notices, but Moon refused to remove the infringing material. Greer then sued Moon and Kiwi Farms for contributory copyright infringement. The trial court dismissed the case because Greer failed to sufficiently allege that the defendants intentionally caused, induced or materially contributed to the infringement. It found that merely permitting the infringing material to remain on the website wasn’t enough. Greer appealed.

Conduct contributed

To survive a motion to dismiss a contributory infringement claim, a plaintiff must allege:

  1. Direct infringement by a third party,
  2. The defendant knew of the direct infringement, and
  3. The defendant caused or materially contributed to the direct infringement.

Like the trial court, the appeals court found Greer sufficiently alleged the first two elements. For the third element, however, the appeals court diverged from the lower court ruling.

The Tenth Circuit agreed that contributory liability requires more than merely permitting the infringing material to reside on Kiwi Farms. But it found that Greer alleged far more than that.

For example, Moon not only refused Greer’s requests to remove his book, but also posted their email exchange — belittling Greer’s attempt to protect his material without litigation. He proceeded similarly when Greer requested the removal of his song, publishing Greer’s private contact information.

The appeals court said such conduct wasn’t the “passive behavior” of merely permitting infringing material on the website. The reposting of the takedown notice combined with the refusal to take down the material amounted to encouragement of Kiwi Farms users’ direct copyright infringement.

Initial involvement not required

Notably, the appeals court made clear that contributory infringement liability doesn’t require a defendant to have encouraged the initial infringement. Ongoing, repeated infringement may support contributory liability if the defendant encouraged it.

© 2024

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