On October 16 of this year, the U.S. Court of Appeals for the 10th Circuit issued a significant decision regarding contributory liability for copyright infringement. In Greer v. Moon, the court concluded that the plaintiff-appellant sufficiently stated a claim for contributory copyright infringement against the defendant-respondents – a website and its operator – by alleging that digital copies of a copyrighted book and a copyrighted music recording were posted on the website without authorization, the site refused to comply with a takedown notice, and that the site's conduct contributed to the infringement by encouraging the site's users to commit direct infringement.
The lower court had dismissed the plaintiff-appellant's infringement claims against the website and its operator on the grounds that merely permitting infringing material to remain on the site without having induced or encouraged "the initial infringement" is not enough to plead infringement based on contributory liability.
However, the 10th Circuit concluded that the defendant-respondents' alleged conduct went beyond passive behavior in merely permitting infringing content to remain on the site. According to the court, a reasonable inference from the facts alleged is that the site's reposting of the plaintiff-appellant's copyright takedown notice – apparently to belittle the copyright owner and the notice as well as for acknowledge that the sites users would continue to engage in infringing activity – amounted to encouragement of the site's users to engage in direct infringement of the plaintiff-appellant's protected works.
Importantly, the 10th Circuit determined that the lower court's insertion of "initial infringement" qualifier to making a claim contributory liability for infringement was improper. It wrote: "We cannot understand initial to be a literal requirement supported by applicable law, otherwise contributory infringement liability would rarely, if ever, lie for ongoing repeated infringements."
In Greer v. Moon, the 10th Circuit rightly rejected a would-be barrier to obtaining relief for contributory copyright infringement because it is unsupported by law. Unfortunately, courts in other cases have sometimes narrowed the scope of traditional secondary liability principles as applied in the context of Section 512 of the Digital Millennium Copyright Act (DMCA). Free State Foundation President Randolph May and I address this in our June 2020 Perspectives from FSF Scholars, "Copyright Office Report Should Spur Modernizing the DMCA."
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