Citation[]
Marobie FL, Inc. v. National Ass'n of Fire Equip. Distributors, 983 F. Supp. 1167 (N.D. Ill. 1997) (full-text).
Factual Background[]
Plaintiff sued for alleged copyright infringement of its clip art by Internet service provider and website hosting service. One of the defendants was the representative of a trade association for fire fighting equipment distributors (“NAFED”) who had obtained several computer disks of copyrighted drawings that related to fire fighting equipment. The representative placed a copy of the drawings, or “clip art,” on NAFED’s website for downloading by Internet users. Circumstances strongly implied that the representative knew that the drawings were copyrighted and that he lacked authority to post them on the Web.
Trial Court Proceedings[]
The court found on a motion for summary judgment that NAFED had directly infringed the copyright owner’s rights.
The issue of concern here was whether the OSP that provided disk storage and Web hosting services to the trade association, Northwest Nexus Inc. (“Northwest”), should be also be found liable on theories either of direct, contributory, or vicarious copyright liability.
Direct infringement[]
On the direct infringement claim, the court found no liability:
| “ | the Plaintiff argues that Northwest [the defendant OSP], unlike the Internet access provider in Religious Technology Center, serves as more than just a gateway to the Internet because [it] actually stores the files . . . in its hard drive. Although [this is] a service somewhat broader than the service provided by the Internet access provider in Religious Technology Center, the court nevertheless finds that Northwest only provided the means to copy, distribute or display plaintiff's works, much like the owner of a public copying machine used by a third party to copy protected material. Like a copying machine owner, Northwest did not actually engage in any of these activities itself. Accordingly, Northwest may not be held liable for direct infringement. | ” |
Vicarious liability[]
The hosting service also was found not vicariously liable for the website owner's infringement. Vicarious liability turns in part on the defendant’s having a direct financial interest in the infringing activities. Here, observed the court, the OSP did not have such a direct financial interest NAFED’s infringing activities because:
| “ | [defendant] NAFED paid [defendant] Northwest a one-time set-up fee of $20 and . . . since that time NAFED has paid Northwest a flat fee of $67.50 each quarter. It is also undisputed that the fee Northwest receives has never changed based on how many people visit NAFED's Web Page or what is accessed. In other words, NAFED's infringement did not financially benefit Northwest. Accordingly, Northwest cannot be held vicariously liable for NAFED's infringement. | ” |
Contributory infringement[]
Summary judgment was denied on the issue of contributory liability, as there was a question of fact regarding the extent of the service provider's knowledge about the alleged infringement.
| “ | Based on the evidence presented, it is unclear whether Northwest knew that any material on NAFED's Web Page was copyrighted and, if it did know, when it knew. The degree to which Northwest monitored, controlled, or had the ability to monitor or control the contents of NAFED's Web Page is also unclear. These disputed issues of material fact preclude summary judgment for either party on this theory of liability. | ” |