Last time, we began speaking about copyright infringement litigation involving Cox Communications. As we mentioned, the Internet provider was accused of failing to terminate service agreements with customers known to be engaging in copyright violations, thus making the company unable to claim immunity for these violations under federal law.
Avoiding copyright infringement is an important matter for businesses, not only because of the hassle of having to deal with penalties and unnecessary costs, but also because of the potential taint to a business’ reputation. Generally speaking, there are two elements that must be proven to successfully pursue a copyright infringement claim: ownership of a valid copyright claim and the copying of original, constituent elements of a copyrighted work. Proving that there was copying requires showing that there was both actual copying and improper appropriation.
Actual copying can be proven through direct evidence, but it is often necessary to prove it through circumstantial evidence. This entails showing that the alleged infringing party had access to the copyrighted work and that there are striking similarities between the works. It can also be shown by evidence that the two works are so strikingly similar that there is no reasonable that the later work was independently created.
In defending against infringement accusations, a defendant may rebut the presumption of infringement by presenting evidence that their work was independently created, particularly that the defendant did not have access to the work.
In addition to actual copying, a plaintiff must also be able to prove improper appropriation. We’ll speak about this element in our next post, and how an experienced attorney can help a business to avoid copyright infringement.