Re: personal liability for copyright infringement

From: <ArborLaw[_at_]aol.com>
Date: Fri, 10 Oct 1997 12:32:02 -0400 (EDT)

On 10/10/97, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> Is there any set of circumstances under which a corporate officer can
> be held personally liable for acts of copyright infringement by the
> corporation, *without* piercing the corporate veil?

My recollection is that copyright infringement is an intentional tort, and that a knowing infringer (one who reproduces, derives etc without permission) is always personally liable, even if he/she is told by a superior to do so. Copyright infringement damages are not dischargeable in bankruptcy. I think, however, in most cases the corporation indemnifies the officer/employee/board member, either through its bylaws, its employment agreements, or under the common law doctrine of respondeat superior. I would certainly bring any infringement action against both.

The SPA has been doing a high-profile job of educating about this issue. For years I have given my corporate clients form employment agreements which require the programmer-employees to indemnify the corporation against the incorporation into the core technology of third-party materials and against any resulting infringement claims. Lately I am seeing these same programmer-employees demanding that the corporation indemnify them and defend them against any infringement charges arising out of software installations required to be performed personally by them, and the right to refuse to install bootlegged copies of software.

Carol Shepherd
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   Carol Ruth Shepherd                          arborlaw[_at_]aol.com
ArborLaw Associates PLLC              
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    and new media law                        +1 313 663 9361 fax

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Received on Fri Oct 10 1997 - 16:32:09 GMT