Is copyright infringement considered stealing in the United States? BMG v Cox

Copyright law in the United States grants the creator a new work a set of exclusive rights. Copyright law protects works of expression like books, music, photographs and films. When a creator of a new work of expression fixes their work in a tangible medium, the creator is granted a copyright to the work. A copyright gives the owner of the copyright the exclusive right to reproduce, distribute, perform, display, transmit and prepare derivative works based on the copyrighted work. If someone other than the copyright owner exercise one of these rights without permission, that can be considered copyright infringement. A copyright owner can stop copyright infringement by filing a lawsuit asking for an injunction and can get damages for copyright infringement which has occurred.

A copyright is like a piece of property because the creator of the work can assign the copyright to another person, but unlike a piece of property, when the copyright owner sells a reproduction of a copyrighted work the copyright is not transferred. The owner of the reproduced work is allowed to resell the product they bought, but the owner of the reproduced work is not allowed to make copies of the copy.

The unique characteristic of copyrighted articles to be sold, without the copyright, is the subject of academic and philosophical debate. One of the points of debate is whether copyright infringement is stealing. Some people argue that copyright infringement is not stealing because the copyright owner is not being deprived of anything. People that support the idea that copyright infringement is stealing cite the fact that the copyright owner is being deprived of the income or royalties they would have realized, had it not been for the copyright infringement. It is unlikely that academics will come to a definitive conclusion on whether or not copyright infringement is stealing.

In a court trial, however, there is no room for ambiguity on the definition of a word. A judge does not have the luxury of allowing attorneys to endlessly debate the merits of whether copyright infringement is, or is not, stealing. The reason for this is that a jury must be given clear instructions on how to interpret the law and reach a verdict. Allowing copyright infringement to be referred to as stealing during a trial would likely affect the judgment reached by a jury.

The question then becomes, can a plaintiff refer to copyright infringement as stealing at trial?

One case which answers this question is BMG RIGHTS MANAGEMENT v. COX ENTERPRISES. INC., 1:14-cv-1611 (E.D.VA 2018). BMG is a music publisher that collects royalties for copyright owners. Cox is an internet service provider that provides its customers with access to the internet. BMG sued Cox for failing to disconnect customers who repeatedly shared copyrighted material on the internet using Cox’s internet service. Cox requested that the judge bar BMG from using terms like stealing and theft at trial because it might prejudice the jury. The judge in the case denied the motion. The judge did not believe it would be unduly prejudicial to allow BMG to refer to copyright infringement as stealing or theft.

But compare that case with DISNEY ENTERPRISES v. HOTFILE CORP, 11-20427 (S.D. FL 2013). In that case copyright owners sued an online file sharing company for contributory copyright infringement. The plaintiffs claimed that the defendant was pirate, helping its customers engage in theft. The defendants objected to the use of those words. The judge barred the plaintiff from using terms like pirate and thief to describe the defendant. The judge reasoned that there was no evidence that the Defendants are pirates or thieves, nor is there evidence that the defendant was stealing or engaged in piracy or theft. The judge held that even if the Defendants had been found to have directly infringed on the Plaintiffs’ copyrights, such derogatory terms would add nothing to the Plaintiffs’ case, but would serve to improperly inflame the jury.

These two court cases illustrate that there is no clear answer to whether copyright infringement can be referred to as stealing at trial. It is an issue that must be raised before trial with the judge and the judge will make the ultimate decision.

If you have questions or comments for the authors of this blog please email us at: admin@uspatentlaw.cn