Are parents liable for children’s illegal filesharing?
Things parents should know If they receive a notice that they are being sued for their children’s alleged illegal Filesharing
If you’re reading this, you may be a parent who has received a notice that your Internet account has been flagged for alleged illegal filesharing, and your child has admitted to illegally uploading/downloading the music or movie in question. The extent that you as a parent are liable for the “copyright infringement” of your children is still up for legal debate. New Media Rights has created this guide for parents to along with the “Mass Copyright Lawsuit” guide to help you understand what you or your child may be accused of.
Ideally, parents trying to determine whether they’re responsible for their child’s illegal filesharing should contact an attorney familiar with the specific parental liability laws in your state. While this guide is no substitute for legal advice tailored to your factual situation, the guide should provide a jumping off point for your to understand this issue that is largely unsettled.
In addition to parents, we hope this guide can act as a primer for attorneys, policy advocates, and judges when considering parents’ liability for a child's’ illegal filesharing activity.
INTRODUCTION TO FILESHARING LAWSUITS
As you may be aware, tens of thousands of people, have been sued by movie studios and adult video companies (the “Plaintiffs”). These Plaintiffs collect the “IP addresses” of computers they believe have illegally shared their movies online. After they collect these IP addresses, they file “John Doe” lawsuits to obtain the defendants’ name and address, so that they can send letters demanding settlement money from the owners of the the internet access plans associated with those addresses (the person who pays the internet bill each month), alleging that these account holders have illegally shared their movies using the internet.
For various reasons, IP addresses may not be effective to definitively identify an individual computer user. Sometimes an IP address can be traced directly to a computer and directly to a person if that person is the sole user of that computer. Just as often though, a IP address seemingly involved in suspicious, illegal activity might just be an errant laser printer. Because suing people based on IP addresses isn’t always accurate, some account holders receive notices alleging illegal filesharing despite having not committed any illegal act.
Also, even if the IP address can be traced back to a specific computer where an infringing act did take place, it’s often the case that the computer/internet connection is shared by a family, a business, or a whole neighborhood (in the case of unsecured routers). Even if an infringing act could be tracked to a certain internet connection, in many cases the internet access account holder was not the specific person who committed the act.
The person who actually shares a file illegally is the one who is responsible for the direct copyright infringement. If you were not the person who shared a file in your house you are not a direct infringer even if your computer was used.
If a person did not actually share a file, you are almost certainly not a secondary copyright infringer either. Intermediaries like internet account holders who do not have specific knowledge or control over infringing acts on their networks have typically received a great deal of protection from liability from courts for both direct and secondary infringement claims.
This is all a very complicated way of saying that, under the traditional legal theories associated with Copyright infringement, it’s unlikely that you as a parent are liable for your child’s illegal filesharing, even if you receive a settlement demand stating that this is true.
However, it’s very important to understand that there are several legal theories not associated with copyright law under which you could be liable for your child’s illegal filesharing.
INTRODUCTION TO PARENTAL LIABILITY STATUTES
Generally, copyright infringement is a subject for the Federal law. However, most states have statutes holding parents financially responsible for “property damage” committed by their minor children.
For example, the relevant part of California's parental liability statue (California Civil Code - Section 1714.1) says this:
(a) Any act of willful misconduct of a minor that results...in any injury to the property of another shall be imputed to the parent or guardian having custody and control of the minor...and the parent or guardian having custody and control shall be jointly and severally liable with the minor for any damages resulting from the willful misconduct.
There haven’t been any cases directly addressing how these parental liability laws would affect a copyright infringement case. Below we discuss how a real court would analyze these issues. Of course, a requirement for any such lawsuit would be that a plaintiff would have to prove your child actually committed copyright infringement by sharing the file using the internet.
There are four issues to analyze whether a parent is liable for the infringement of their child:
(1) what is “willful misconduct” and is any other types of misconduct covered by these statutes;
(2) are all “minors” covered under these statutes or are some exempt;
(3) what is meant by “property of another”
(4) what is meant by “injury.”
1. Who is covered by the language of these statutes?
Generally, children over seven are responsible for their own torts, and the legal consequences that may follow. But because most children are dependent on their parents, states have enacted statutes holding the parents financially responsible for acts done by their children, to ensure that the plaintiffs can at least recover part of their damages.
Because parental liability statutes impose liability where none was before under common law, the people affected by the statutes have been narrowly construed. Generally, a person must be the custodial parent, or have control of the minor child to be liable. [ Children and the Law: Rights and Obligations, Section 11:6 ] Control is not about behavior, but over the legal interests of the child. What this means, especially for parents with split-custody of a minor, or other family members where the minor is just visiting, is that you may not be financially responsible if the minor did use your internet connection to download copyrighted material.
2. What acts are covered under these statutes?
Many states, including California, require that the act be done wilfully, that is, with the full knowledge of what they are doing. This does not mean that they have to know the full legal consequences of downloading, but they do need to be aware that they are downloading copyrighted material. Other states only require the minor to be negligent. It is important to know the language of the statute in your state.
Liability should not apply where fraud is involved. If the website or service the child used claimed to be legitimate or seemed to be offering a legitimate service, your are not likely to be responsible for the consequences.
Advanced note for lawyers. The standard for “willfull” for parental liability is probably different than “willfull” for willful copyright infringement, which does require knowledge that the download is illegal to allow for higher damages. This is discussed in greater detail below, in the section “How much money am I on the hook for?”).
3. What do these statutes interpret as property?
Copyright protected material is considered “intellectual property.” Although original creative expression is mostly intangible, the law treats it as though it were tangible. When we’re talking about copyright infringement, the property in question is the original work, such as the movie or music, and the claimed infringement is regarding the downloader’s unauthorized copying of that work in the form of a downloaded file. The copyright is owned by someone, and by sharing a copy illegally instead of purchasing a physical copy or a licensed digital copy, copyright holders argue that your child is essentially infringing upon their right to sell and license that content.
What do they mean by damage (or injury)?
Parental liability statutes were enacted to compensate a plaintiff for damage done to their person or physical property, not intellectual property. Part of this could be because actual damage to copyright and trademarks are difficult to ascertain with any sort of certainty, or because federal laws provide statutory remedies for infringement.
In the case of copyright, we can most likely assume that the simple act of illegal filesharing would be an infringing act, but whether this constitutes “damage” analogous to a broken window or a broken bone is unclear.
In addition, the damage limit is only for general damages, that is, damages that have been directly caused by the conduct, and does not include liability imposed by law. This is critical when talking about copyright law because copyright law imposes a specific amount of damages for certain acts.
When a copyright holder (like a movie or music studio) is suing on copyright infringement, it is generally the responsibility of the plaintiff to show how much money has been lost or how much damage has been done to the property by the infringing act, which in this case is a download or upload of a file. However, since the damage caused by a single download could be too low, or too difficult to ascertain with any sort of certainty, most plaintiffs seek statutory damages, which are outlined in the Copyright Act.
Generally, damages for copyright are limited to between $750 and $30,000 per infringing act.
Damages could be found to be up to $150,000 per act after a trial. The standard for awards over $30,000 requires a court to find that the download was done “wilfully.” This is a high standard, and means the minor must know both that they are filesharing something, and that the filesharing is illegal.
It is also important to note that copyright law allows for a lesser award for damages if the child’s mental state was such that they were “not aware and had no reason to believe that his or her acts constituted an infringement of copyright.” (17 U.S.C. 504(c)2) This good faith infringer argument could be important in cases involving filesharing by a minor.
The summary of all this is that this may mean parental liability statutes don’t cover statutory damages because they are not damages directly caused by the conduct. Further, actual damages caused by the child’s download may be minimal, and may not even be covered under the state’s parental liability statute if it doesn’t cover intellectual property, offering further support to parents seeking to avoid liability.
How much money am I on the hook for?
The monetary responsibility imposed on the parents in California is up to $25,000 per act. Statutes vary from state to state, but in general they require the minor to act willfully, recklessly or wantonly. If a court finds that the child had the correct mental state, that copyrighted material is considered property for purposes of the parental liability law, and that the damages (general or statutory) for copyright infringement are covered in the parental liability law, a parent in California could theoretically be on the hook for up to $25,000 per song, movie or TV episode, or any other piece of media that has been downloaded without a license.
While this adds up fast, it is still less than copyright statutory damages, which can run up to $150,000 per file.
All state parental liability laws are not created equal
This highlights a key difference between state parental liability statutes. The parental responsibility statutes vary from state to state, and some states, like California, may allow plaintiffs to recover on each act, while others may allow acts to be consolidated. What this means is that the parents of a child that makes 5 downloads may be liable for up to $125,000 in a state like California, while in states the same parents may have only been financially responsible for up to $10,000, total. Be sure to check, or preferably have your lawyer check the statute in your own state for both the amount of the cap as well as whether the state allows consolidation of claims.
Although parental liability statutes place a limit on the amount of money a parent will have to pay out for tortious damages, it is unlikely that parental liability damages will be applied to damages for a copyright suit because parental liability statutes generally apply where damages are not set out in the statute itself.
So, while it is undecided in the courts, there is a good argument that parental liability statutes should not place liability on parents for statutory damages under copyright law because they are not damages directly caused by the conduct, instead, they are set by law.
Most states have their own statutes for parental liability, and the level of financial liability can vary. Some states set their cap, like California, to be per act, while others hold the total no matter how many acts there are. Be sure to check the statute for your state.
In addition to parental liability statutes, parents of course still must face the prospect of their children being sued for copyright infringement. Even if the parents were found to not be liable under state parental liability statutes, a child can be sued directly for copyright infringement, which would surely still put a strain on family resources in terms of hiring legal counsel, even if the child had little in the way of assets that the copyright holder could recover.