What is copyright infringement?
Under copyright law, the state of mind or intent of the infringer is irrelevant. Infringement applies even when the act is not a conscious one. This protection applies equally to digital and non-digital works.
The Internet raises important questions concerning the analysis of infringement in a digital world, since transmission of any material over the Internet requires that a copy, and in fact typically multiple copies, be made.
E-mail, Web pages, and other data sent over the Internet cannot be viewed on the recipient's computer unless they are first stored on that computer. Web users who view a cartoon of Mickey mouse on the www.disney.com Web site, for example, may not be aware that they are making and storing a digital copy of that cartoon on their own computers, although they are in fact doing just that. Material that is transmitted over the Internet is often cached, or stored, on the servers of Internet service providers to improve the efficiency of recall and reduce bandwidth requirements.
» When is a use considered to be "infringement"?
A party is guilty of copyright infringement if they violate one of the five exclusive rights given to copyright owners under the Copyright Act. Included in those rights are the right to prevent others from reproducing (or copying) a work, publicly displaying a work, or distributing a work.
It is clear that Web publishers and Internet service providers would be liable for copyright infringement if they are directly involved in the copying of protected material.
But should ISPs and others, such as an online course provider who hosts posting areas and discussion boards for students, be held liable for copyright infringement for material posted on its facilities by a third party?
Example
In 1995, the court in Religious Technology Center v. Netcom On-Line Communication Services, Inc., ruled that Netcom could not be held liable for infringing copies stored on its computers. The court addressed whether Netcom was liable to a subsidiary of the Church of Scientology for the posting of copyrighted works of L. Ron Hubbard on its bulletin board. The question was not whether a copyright violation occurred, but whether Netcom as the ISP was liable. The court held that Netcom was not liable for direct infringement, even though it failed to respond to the church's cease-and-desist demand. Netcom had been unaware of the infringing activity or that the posted material was unauthorized. The court reasoned that "finding such a service liable would involve an unreasonably broad construction of public distribution and display rights."
