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Censure the Tree for Its Rotten Apple: Attributing Liability to Parents for the Copyright Infringement of Their Minor Children

Due to circumstances beyond the author's control, there was a lengthy period between the time the note was accepted for publication and the date of publication. The thesis and ideas expressed in this note remain novel and valuable, but the author encourages readers to view the note in the context of a field of law that is rapidly developing.

Chad Silver is Senior Staffer, Cardozo Public Law, Policy, and Ethics Journal, J.D., Jun. 2005. The author would like to thank the members of the CPLPEJ whose direction and effort contributed to the publication of this Note, as well as Professor Susan Crawford. He also wishes to offer a special thanks to his parents and his sister, for their unceasing love and support.

Introduction.

Seventeen years old and he just got his driver's license. He's gallivanting around town in his brand new Porsche blasting the hottest new tunes out of his top-of-the-line Bose stereo system. And everyone wants to know: where exactly did he get those songs? Unfortunately, the answer is that he illegally downloaded them off of the Internet.

Illegally downloading music is a common practice among children and one more serious than it may initially appear. As a result of illegal electronic file sharing, the recording industry has been experiencing a continuous decline in sales; between 2001 and 2002, overall sales dropped almost H.2%.1

While the majority of the public has had little concern for the financial well-being of music conglomerates like Sony and Columbia Records, the industry will lose the necessary resources essential to funding and developing new artists without the incentives created by the protection of copyrights.2Additionally, illegal electronic file sharing "threatens the jobs of tens of thousands of less celebrated people in the music industry, from engineers to technicians and warehouse workers and record store clerks."3Legislative and litigation solutions to the economic problem caused by illegal downloading have slowly started amending the problems that make copyrighted content illegally accessible to users online.4As a result of such efforts, the hard decline in sales is beginning to soften.5

One opening left exposed in the industry's new armor is that minors may continue illegally downloading songs without the threat of direct liability. According to "some estimates, teenagers make up half of the 60 million people who use [online] file-swapping services" to illegally trade music.6Most minors are unable to pay the damages for which they may be liable as a result of their infringing activity. Because many children are allowed to download music illegally without consequence, the recording industry is left without a meaningful remedy and with nothing to deter the activity. Since teenagers comprise a large portion of the market for music,7depriving copyright owners of a viable source of recourse poses a distinct threat to the music industry. Although there is no panacea for this problem, by implementing parental liability for copyright infringements perpetrated by minor children, copyright owners would be provided with a possible remedy for such violations.

Section I of this note presents an overview of the current legal environment surrounding copyright infringement on the Internet. Section II offers an analysis of the legal liability of minors and their parents.

Section III examines the corresponding theories of copyright infringement and parental liability for minor children. Finally, I propose that minors could be deterred from illegal downloading by the implementation of incentives for parents to prevent their children from engaging in such activity.

I. Copyright Infringement on the Internet.

With the development of simplified methods of transferring digital information over the Internet, a global dilemma emerged concerning the illegal distribution and reproduction of copyrighted works. As new methods of file sharing continue to materialize, Congress and the federal judiciary continue to combat the free reign of online copyright infringers with new statutes and case law.8While a comprehensive discussion of the legitimacy of file sharing with regard to copyright infringement is beyond the scope of this note, an overview of the recent history surrounding the subject and the major players involved is essential to prepare a foundation.

A. Digital Millennium Copyright Act.

In 1996, the World Intellectual Property Organization (WIPO) drafted several treaties in a global effort to forestall the growing disregard for copyright laws.9In October 1998, the United States Congress adopted these treaties into law by passing the Digital Millennium Copyright Act (DMCA).10The DMCA was aimed at Internet service prov- iders (ISPs)11in an attempt to block Web sites from providing infringin...

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