Janelle A. Weber, Don’t Drink, Don’t Smoke, Don’t Download: Parents’ Liability for their Children’s File Sharing

57 Fla. L. Rev. 1163 (2005) | | | |

INTRODUCTION :: When Darlene Emanski subscribed to America Online (AOL), she thought she was providing her teenage daughter with a fun and convenient means of researching school projects, communicating with friends, and listening to music now and then. The Central Florida small business owner never imagined that she also might be enabling her daughter to become a digital music pirate. Last year, AOL notified Emanski that the Recording Industry Association of America (RIAA) had issued a subpoena to learn her identity, taking the first step toward suing her for copyright infringement. Emanski was shocked. Although she knew that her then fifteen-year-old daughter had downloaded some music, Emanski said she had no idea that in a matter of weeks the teen had amassed a library of more than seven hundred songs on the computer hard drive. And, even though Emanski kept up to date with current affairs, she said she did not realize that her daughter was violating copyright law or that she could be held legally accountable for her daughter’s conduct.

Since receiving the notification from AOL, Emanski has taken steps to reduce her chances of eventually being sued by the RIAA. She has informed herself about the restrictions against the unauthorized sharing of copyrighted music and has forbidden her daughter from further engaging in the practice. Although the teenager initially was amused by the hubbub caused by her downloading, she has come to appreciate the gravity of the situation. She has obeyed her mother’s new rule and has returned to buying compact discs (CDs) to quench her thirst for new music.

The RIAA’s lawsuits against individuals served as a wakeup call not only to Emanski, but also to parents throughout the United States. Since September 2003, the RIAA has filed suit against at least 11,809 individuals for allegedly trading music online. Many of these persons are the parents of pre-teen and teenage Internet users. In the wake of this innovative anti-piracy campaign, scores of parents have found it necessary to expand the scope of their parent-child discussions. In addition to talking about sex, smoking, and substance abuse, many parents now also discuss the perils of file sharing. Consequently, parents have had to examine their own views about the recording industry, intellectual property rights, and the interplay between law and morality.

It is important to note that the RIAA did not specifically target parents. When the trade association filed its lawsuits, it did not have any personal information on the individual defendants. It merely had the name or Internet Protocol (IP) address of the persons who had subscribed to the Internet Service Providers (ISPs).The fact that many parents have been snagged in the litigation has not caused the RIAA to retreat from its policy of suing individuals, though. The organization has stated that in today’s world, parents need to be aware of their children’s online activities.

Since the RIAA has been willing to settle most lawsuits for several thousand dollars or less, most parents have concluded that it is in their best interest to stay out of court. A parent who chooses to contest the action would be forced to spend thousands of dollars defending himself. And if ultimately found liable, the parent could be forced to pay statutory damages ranging from $ 750 to $ 150,000 for each song his child illegally reproduced.

Given parents’ overwhelming incentive to settle, it is not surprising that as of the time this Note was written, there were no published legal decisions involving parents who have been sued as a result of their children’s file sharing. Apparently, no court has yet had the opportunity to consider whether and under what circumstances a parent could be held liable for the infringing conduct. The purpose of this Note is to examine this novel, unexplored question, thereby enabling courts, legislators, attorneys, families, and the record industry to better understand the legal and policy issues involved and to make informed decisions when confronted with this matter.

Throughout this Note, the term “child” will refer to a minor child, and the term “parent” will refer to a parent or legal guardian. Part II suggests that a parent typically would not be held liable under the copyright doctrine of vicarious liability. It surmises that a parent could be held responsible under the related doctrine of contributory infringement, but it notes significant differences between parents and the defendants that have been found culpable in prevailing cases. In an attempt to resolve the uncertainty surrounding this issue, this author looks to a related area of law, torts, for guidance. Part III asserts that imposing parental liability in the copyright context would be consistent with common law precedent. Part IV shifts to a public policy discussion, pointing out the reasons it would be just to hold parents accountable for their children’s file sharing. Part V contends that contributory infringement could serve as a just theory of parental liability if applied in a manner that comports with key principles of common law and statutory tort law. This Note concludes with a broad recommendation that parents actively monitor their children’s Internet use, and thereby fulfill one of their important, new responsibilities in the digital age.

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