Re: [CNI-COPYRIGHT] Negligence as defense to infringement

From: <sstouden[_at_]thelinks.com>
Date: Fri, 18 Apr 2003 23:00:23 -0400

CAnnot help with the answer, but want to add more to the hypothetical: What if instead of vicarious liability for employee negilence, the question were extended to ask, suppose it was a 3rd party contractor that negligently provided materials in which specifications had been given by the publisher as a condition for proper performance under the 3rd party contract. This contract had been drafted to protect the publisher against infringement, by demanding adequate performance on the part of the 3rd party contractor for his work products. a. negligently included the contracted work in the publication.

   i. with no inspection
  ii. with diligent inspection
 iii. with diligent use of an inspection method that was flawed.

 iv. with diligent inspection method negligently employed b. diligently tested the contacted work for compliance to the specifications designed to provide assurance of non infringement but failed by

   i. general oversight, or
  ii. detection method failure, or
 iii. detection equipment failure
  iv. neglient application of method and equipment

and with regard to your question:
  ditto as to the cause of the neglience.

On Wed, 16 Apr 2003, Kevin Grierson wrote:

> Is anyone aware of any case law that deals with the "we goofed" defense to copyright infringement?
>
> Consider the following hypothetical:
>
> Publisher uses various works in its publications and generally uses stock photos or obtains permission from a copyright owner. Publisher's new employee, not properly trained, uses photos that are not stock photos in a commercial project without the cop
yright owners' permission.
>
> Assume that Employee had no "bad intent" in the sense that he/she meant to infringe, but Publisher's failure to train indisputably caused the infringement.
>
> Question: Can publisher show innocent infringement to reduce statutory damages? In the alternative, can Publisher assert that it was merely negligent as a defense to a claim of willful infringement? There's a lot of discussion of what level of intent
 is required to show bad faith, but there's not much I've been able to find involving "inadvertant" infringements that could have been avoided if the infringer were not negligent in its screening procedures.
>
> It seems, on the one hand, that a court would be inclined to be lenient with an infringer that generally obeys copyright laws in its business; on the other hand, it strikes me that the "you ought to know better" principle might apply, too. Any thoughts
/case law?
>
> Thanks,
>
> Kevin Grierson
>
> Kevin W. Grierson
> Willcox & Savage, P.C.
> One Commercial Place, Ste. 1800
> Norfolk, Virginia 23510
>
> mailto:kgrierson[_at_]wilsav.com
> ph: 757/628-5603 fx: 757/628-5566
> http://wilsav.com
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Received on Sat Apr 19 2003 - 07:00:23 GMT