Classified Ads

"A newspaper contains a classified ad section, a small subsection of which frequently features solicitations to trade copies of copyrighted compact discs. Newspaper is sued. Vicarious liability is the most promising avenue. Vicarious liability, in the copyright infringement context, is liability for the infringement of others when one has the right and practical ability to control that infringement. Here, the newspaper has the right to decide which ads to print. Further, the newspaper is certainly capable of screening ads for solicitations to trade infringing copies. This case would essentially be a low-tech version of Napster, but where the ability to screen for infringers is even easier. Note that solicitations to trade the compact discs themselves, the actual discs bought at retail, would not form the basis of a secondary infringement claim. There would be no copy at all made in such circumstances. I’m free to sell or give away books I no longer want, CDs that I don’t want, or any other article subject to copyright. You may be tempted to cite inducement as a possibility here. But the newspaper itself is not actively encouraging anyone to infringe. The evidence of inducement in Grokster went to evidence that the companies themselves were encouraging infringement—by marketing to infringers, advertising the utility of their product to infringe, etc. There isn’t any of that here."