Vicarous copyright infringement, at least where the Internet is concerned, is nothing more than a redundant tort. A case filed in December 2013 in Maryland District Court illustrates the proposition nicely. National Photo Group, LLC v. Volunteerus, LLC, plaintiff, National Photo Group (NPG) a photojournalism service, brought a cause of action against Volunteerus for posting NPG pictures without authorization on Bubblws.com, a Volunteerus owned website.
According to the complaint, Volunteerus committed direct, contributory and copyright infringement when it “without permission or control, …improperly and illegally copied, reproduced, distributed, adopted and/or publicly displayed works copyrighted by [NPG].” According to the facts, NPG prints were made accessible to anyone on the Internet through its publication on the bubblews.com website.
The elements necessary to prove Internet copyright infringement are fairly well settled and a review of the Supreme Court case, MGM Studios v. Grockster, Ltd. provides a nice primer. The issue for me in National Photo Group is not so much one of whether there was infringement but rather why the tort of vicarious copyright infringement is relevant in the Internet age. In order to prevail under a theory of vicarious infringement, NPG must demonstrate that a third party appropriated the NPG photographs through the Bubblew.com website and that Bubblew.com was “in a position of control” to authorize the use of an infringing work. According to the Gockster Court, a defendant exercises control over a direct infringer when he has both a legal right to stop or limit the directly infringing conduct, as well as the practical ability to do so.
But given both the presumptive nature of and the ease with which anyone can download, print or even email pictures from the Internet it seems the only way to “control” vicarious copyrighters is by not providing these third parties access to the pictures in the first place. Stated more clearly, vicarious copyright infringement can only occur if the primary copyrighter illegally and impermissibly publishes the photographs on its own sites. And isn’t the original publication direct copyright infringement. If so, it seems that vicarious copyright infringement can only occur if defendants engage in direct copyright infringement. In an age of reposts, retweets, and regrams, it is pretty much a fortiori that directly copyright infringement will always lead to vicarious copyright infringement. Consequently, do we really need both torts?