This Week's Feature
Downloaders, bootleggers, and pirates
Excerpted from Oklahoma Employment Law Letter, written by attorneys at the law firm Doerner, Saunders, Daniel & Anderson, LLP
by Elizabeth W. Carroll
The music and motion picture industry is becoming increasingly zealous in its prosecution of copyright infringement cases. Most of what we hear about is grandma getting sued for her grandchildren's use of her computer to download music. While that's certainly the trend in the industry, employers must be aware of their potential liability for their employees' downloads.
A public relations nightmare might arise for the music and motion picture industry when it goes after grandmothers who barely know how to turn on their computers, let alone download illegally.
But the same public relations nightmare doesn't exist when the industry pursues you, the employer, for failing to monitor employees' activities while using company computers. Be aware that the potential for litigation is real and likely if your employees are downloading music and movies from the Internet.
Basis for employer liability
Employers are responsible for their employees' acts through a doctrine known as vicarious liability. In the same way that you might be responsible if your company truck driver slammed into the back of an unsuspecting bus full of children, you can be responsible if your mail clerk sits down at the computer and downloads bootleg copies of Pirates of the Caribbean.
You maintain insurance for your truck driver, but what are you doing to protect yourself from copyright infringement liability?
According to the court's decision in Lowry's Reports, Inc. v. Legg Mason, Inc., vicarious copyright liability "reaches any defendant who has the right and ability to supervise the infringing activity and also has an obvious and direct financial interest in exploitation of the copyrighted material."
You, as an employer, have the right and ability to supervise your employees' activities, and you may have a financial interest in the copyright infringement.
In the Lowry's case, the employees posted a copyrighted stock report on the company intranet for the company's stockbrokers' use. The court found that the company saved money by not having to purchase the report for all its stockbrokers and that it made no difference that the posting of the report violated express company policy.
According to the court, copyright law doesn't care about the defendant's knowledge or intent.
Employers also can be liable as contributory infringers. According to another recent decision, Warner Bros. Records, Inc. v. Souther, contributory infringement requires "knowledge of the infringing activity" and inducement, causation, or material contributing to the infringing conduct.
By providing Internet access and computers to your employees, you are likely materially contributing to or inducing infringement. All that would be necessary for a copyright holder to prove liability, then, is knowledge.
If your managers, officers, and other high-ranking employees are aware of the infringement, a court probably would find that your company also is aware of it.
What you can do
What can you do to protect your company? The most important step you can take is to have an Internet use policy and enforce it. Imagine how it might look to a court for you to tell your employees that you're monitoring their Internet activities but not actually doing it.
Also, it's important to explain to your employees the reason for the policy and why it's of such financial importance to your company. Get together with your technology department and come up with creative and realistic ways of protecting your company from a copyright infringement lawsuit.
You can reach the author at ecarroll@dsda.com.
Copyright © M. Lee Smith Publishers LLC. This article is an excerpt from OKLAHOMA EMPLOYMENT LAW LETTER.OKLAHOMA EMPLOYMENT LAW LETTER does not attempt to offer solutions to any individual problems or to provide legal advice to its readers. Rather, the OKLAHOMA EMPLOYMENT LAW LETTER seeks to provide information about current developments in Oklahoma employment law. Questions about individual problems or requests for legal advice should be addressed to an employment law attorney of your choice.
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- Beyond Internet and e-mail abuse
- Grandma, what big damages you have! Downloading and file-swapping at work
- Sad songs: employer liability for employees downloading music at work
- Is your company's work blogging down?
- Other resources
- HR Executive Special Reports -- Electronic Workplace
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