Contributing to copyright infringement
The society offered students pirate copies of course textbook Traditional Japan as an incentive to get them involved.
Bootleg copies were titled Readings and sold for 10 Israeli shekels ($3), whereas Shocken Publishing House’s official version retailed at 89 Israeli shekels ($26). Shocken sued Readings’ publisher-distributor, Yaakov Cohen, the Labour Party and the Hebrew University of Jerusalem for copyright infringement.
The district court applied a new judicial doctrine of contributory infringement to copyright law, so the Hebrew University of Jerusalem and the Labour Party could be sued.
Contributory patent infringement was recognised in Rav Bareach, a patent case involving an importer of two parts of a three-part crook lock for the steering wheel of a car that was found guilty of contributory infringement. Without the Rav Bareach case, the patentee would have had to sue each and every purchaser of the locks for direct infringement. With the contributory infringement doctrine, the importer could be sued, enabling effective enforcement.
In the copyright case, the district court also ruled that there was a breach of legal obligation. There was no proof of how many pirate copies were sold by the university society. Instead, Shocken was awarded 20,000 Israeli shekels ($5,700), which is the maximum amount of statutory damages that can be awarded under the 1911 Copyright Ordinance, which was in effect at the time of the infringement.
The district court divided this amount between the defendants: Cohen had to pay 40 percent of the damages, the Labour Party 30 percent and the Hebrew University of Jerusalem 30 percent.
"THE SUPREME COURT RULED THAT AS THE LABOUR PARTY BENEFITED FROM AN INCENTIVE THAT WAS AIMED AT ENTICING STUDENTS TO JOIN THE SOCIETY AT THE HEBREW UNIVERSITY OF JERUSALEM, IT AIDED AND ABETTED THE INFRINGEMENT."
On appeal, the Hebrew University of Jerusalem challenged the doctrine of contributory infringement, arguing that it was not in the public interest to find universities, Internet service providers and forums liable for the copyright infringement committed by others that takes place on their real or virtual premises. The university also argued that it did not gain any financial benefit from its ‘contribution’ to the copyright infringement.
As for the breach of legal obligation, the university argued that the tort could only be applied where there is no statutory damage, which is not the case for copyright infringement. Furthermore, the university argued that it was unaware of the specific infringement and so it could not be held responsible. Finally, the university argued that distributing copies of course materials at a cost-only price to students is a fair use.
The Labour Party agreed with the Hebrew University of Jerusalem’s legal arguments regarding contributory infringement and breach of law, and it also argued that there was no evidence to suggest that the pirate textbooks were published using the university’s photocopiers or with its financial assistance.
In its counter-argument, Schocken said that the university library stocked 11 copies of the book, even though it was required reading for approximately 370 students, and so it encouraged them to make illicit copies. Shocken also argued that there was trespass under Section 13(a) of the law of chattels.
The Supreme Court offered some support for the presence of the contributory infringement doctrine in copyright law. It said that owners of venues such as wedding halls and theatres are required to check that DJs have licences from copyright societies before they play in their venues. The Supreme Court also explained that the doctrine was well established in the US, and cited a range of Israeli academics who have discussed the issue with reference to the New Copyright Law 2009.
After a discussion about the balance of interests between the public and private domains, and the need to encourage creativity by preventing commercial copying, the Supreme Court ruled that in the interests of efficiency, it is legitimate to sue the conduits of the copying provided that there is direct copyright infringement.
The Supreme Court ruled that as the Labour Party benefited from an incentive that was aimed at enticing students to join the society at the Hebrew University of Jerusalem, it aided and abetted the infringement. The Supreme Court also ruled that there was no evidence that the Hebrew University of Jerusalem had specific knowledge of the infringement, and that the university was not obligated to police all clubs and societies, the Internet and student email accounts.
In dismissing the contributory infringement charges against the university, the Supreme Court said that it no longer needed to rule on the fair use defence. It absolved the university, upheld Cohen’s 40 percent share of the damages and increased the Labour Party’s share to 60 percent. Shocken was told to pay 10,000 Israeli shekels ($28,600) to the Hebrew University of Jerusalem to cover its legal costs.
Dr Michael Factor is a partner at JMB, Fa©tor & Co. He can be contacted at: mfactor@israel-patents.co.il
