Yvette Joy Liebesman, a law professor of Saint Louis University, has written Downstream Copyright Infringers, an article that attempts to identify and propose a solution to a potentially significant online copyright infringement issue. While cyberspace has become a great venue for the recording industry, musicians, and songwriters to sell their works to the general public, this access potentially may turn digital music consumers into unintended copyright infringers.
When consumers, for example, purchase a song and download a “copy” of the tune to their computer, this conduct may impinge upon a copyright owner’s reproduction right, which is protected by the Copyright Act. But didn’t the copyright owner authorize such reproduction, since the consumers paid for the downloadable version of the song? The simple answer is yes. But here’s the rub: If the song that the consumer downloaded itself infringes another copyrighted work, then the owner of that work could sue the consumer for unintentional infringement. Since copyright infringement, intentional or unintentional, is a strict liability tort, consumers most likely would be found liable in such litigation.
Liebesman suggests that Congress should create an exception for “consumer downstream infringement,” which is a tort that Copyright Act never intended to punish.