A library that provides guidance as to which activities are and are not permitted is less likely to be responsible for the acts of its employees. But it will not do the library any good if administrators and staff disregard the policy. The library, or any organization for that matter, cannot enforce its policy with a wink and a nod. This is what happened to the Kinko’s Corporation when it was found liable for employees who photocopied copyrighted articles and book chapters to create coursepacks for students.[1] Kinko’s had a policy, but failed to enforce it. The court found that Kinko’s used the policy only to “cover” itself. It wrote:
Kinko’s instructions to its workers possessed little of the nuance of the copyright law. They provided no hypothetical situations nor any factual summary of the state of the law presently. …. This can hardly be considered a “good faith” effort on Kinko’s part to educate their employees. To the contrary, it appears more to be a way to “cover” themselves while Kinko’s remained willfully blind to the consequences of their activity.[2]
Contributory infringement is a little different. A library or its parent institution may be liable as a contributory infringer if it induces, causes, renders substantial assistance to, or materially contributes to the activity.[3] It doesn’t matter whether the infringer is an employee or someone who walked in off the street. Actual knowledge is not necessary; it is enough if the library should have known that an infringement was taking place. But this doesn’t mean that the library is on the hook if it merely provides patrons with an opportunity to infringe someone’s copyright.
The U.S. Supreme Court has held that manufacturers of video cassette recorders aren’t liable for contributory infringement simply for selling a device that could be used for both legitimate and illegitimate copying.[4] Likewise, no court would hold that a library is liable for contributory infringement simply because it provides patrons with computers that could be used for both infringing and non-infringing purposes. But if a library posted instructions on how to download pirated music files, it would be liable for contributory infringement because the instructions are clearly for an infringing purpose.
- ↑ Basic Books, Inc. v. Kinko’s Graphics, 758 F. Supp. 1522 (S.D.N.Y. 1991).
- ↑ Id. at 1545.
- ↑ A&M Records, Inc. v. Napster, Inc., 239 F.3d at 1019; Cable/Home Communications Corp. v. Network Prods., Inc., 902 F.2d 829, 845 (11th Cir. 1990).
- ↑ Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 442 (1984).
