Company Held Liable for Employee Redistribution of Subscription Email
Can your company be held liable if an employee redistributes an electronic subscription within or outside of the company, in violation of your subscription agreement? You bet.
A federal court in Maryland recently so held in a case in which an employee posted a subscription email report to a company intranet. The employer had paid for a single email subscription, and the subscription agreement restricted further distribution. The court found the employer liable for copyright infringement. The case is Lowry’s Reports, Inc. v. Legg Mason, Inc., 271 F Supp 2d 737 (D Md 2003).
Electronic subscriptions are rapidly replacing hard-copy periodicals, and electronic publishers realize that there is lots of money to be made by strict enforcement of subscription agreements. For instance, some publishers take the position that you cannot even copy and circulate the table of contents from a publication without the publisher’s permission (and they may be right if the table of contents contains sufficient creative content). Many electronic subscription agreements prevent making and distributing even a single hard copy of the publication, and posting a limited-subscription publication on a companywide intranet obviously violates the subscription agreement and infringes the publisher’s copyright. And forget about arguing that the subscribing company did not authorize the distribution (or even, as here, expressly prohibited it) and is innocent of any wrongful intent. In general, copyright laws impose strict liability. “Innocent” infringers are still infringers, and employers are responsible for their employees’ acts, authorized or not, that occur within the scope of their employment.
Can you defend the copyright infringement claim if you merely email an electronic publication to a coworker who does not download it, but only reads it in random-access memory and then deletes it? Yes, you can be held liable under those circumstances. Several courts have held that such “ephemeral” copies are sufficient to trigger copyright infringement.
This case is a good illustration of the need for periodic audits to ensure copyright compliance.