In an important recent decision, the Israel Supreme Court has recognized contributory infringement in copyright. The specific case relates to pirate textbooks available from a student society on campus that is supported by a political party. The Court of First Instance found the publisher directly guilty of copyright infringement and the political party and the university guilty of contributory infringement; a judicial tort previously available for patent infringement only.
On Appeal, the Israel Supreme Court upheld the concept of contributory copyright infringement and aiding and abetting infringement, but in the specific case, found the university not responsible. The issue of fair use, particularly in academia is also discussed. Although the case in question relates to book publishing, the decision is expected to have repercussions concerning the downloading and reproduction of digital data.
The Israel Labour Party subsidises a student club called “Teh Ofek” (Horizon Cell) at the Mt Scopus Campus of the Hebrew University. As an incentive to get students involved, they provided cheap versions of a course textbook titled “Traditional Japan”. The bootleg copies were sold under the name “Readings” for NIS 10, whereas the official version sold by the publisher, Shocken, retailed at NIS 89. Shocken sued the publisher-distributor – a Yaakov Cohen, the Labour Party and the Hebrew University.
The Court of First Instance applied the judicial doctrine of contributory infringement recognized in Rav Bareach, a patent case where an importer of two parts of a three-part crook lock for the steering wheel of a car was found guilty of contributory infringement. Without this concept, the patentee would have had to sue each and every purchaser for literal infringement. With this doctrine, the importer could be sued, enabling effective enforcement. The court also ruled that there was a breach of legal obligation. There was no proof of how many copies were sold. Instead, NIS 20,000, the maximum statutory damages under the old copyright law was awarded to Shocken. The Court divided this up as 40% to be paid by Mr Cohen, 30% by the Labour Party and 30% by the Hebrew University.
On appeal, both the Hebrew University challenged the doctrine of contributory infringement arguing that it was not in the public interest to rule sweeping liability for universities, Internet Service Providers and forums for copyright infringement that takes place on their real or virtual premises. Furthermore, the University also argued that it did not gain any financial benefit from their ‘contribution’. As to the breach of legal obligation, the University argued that this tort could only be applied where there is no statutory punishment, which is not the case for copyright infringement. Furthermore, the university argued that they were unaware of the specific infringement and therefore could not be held responsible. Finally, they submitted that distributing course material at cost to students was fair use.
The Labour Party agreed with the university’s legal arguments regarding contributory infringement and breach of law and also argued that there was no evidence that the book was published using its photocopiers or with its financial assistance. The publishers argued that the university library held 11 copies of the book which was required reading for some 370 students thereby encouraging them to make illicit copies. They further argued that there was trespass under Section 13a of the law of chattels, claimed that the fair use doctrine invoked by the university was an inadmissible widening of their defense and also pointed out that the use was financial not academic.
The Court of Appeal found some support for the doctrine of contributory copyright infringement with regard to the requirement for venues such as wedding halls and theatres to check that DJs have licenses from copyright societies, explained that the doctrine was well established in the US, and cited a range of Israeli academics including Tony Greenman, Guy Pessach, Neil Netanel and Michael Birnhack who have discussed the issue with reference to the New Copyright Law 2009, and who believe that there is room for this tort. Then the Supreme Court pontificated a little about the balance of interests between the public and private domain and the need to encourage creativity by preventing commercial copying and thereby providing a financial incentive. In so doing, provided there was direct infringement, the court ruled that in the interest of efficiency it was legitimate to sue the conduits of the copying.
In ruling, the Supreme Court found that the Labour Party benefited from this incentive to students to join the club and aided and abetting the infringement and should be punished. With regards to the university, the court did not clarify the boundaries of fair use for study, nor did they rule how much of a book could fairly be copied. However, they did rule that there was no evidence of specific knowledge, 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 court saw itself as no longer required to rule on the fair use defense thus avoiding ruling on both the issue of widening the defense and the issue of itself. Thee Court absolved the Hebrew University of Guilt, upheld the 40% liability to Mr Cohen and awarded the remaining 60% to the Labour Party. Shocken were obliged to pay NIS 10,000 to the Hebrew University to cover their legal costs.
The Case: Appeal to the Supreme Court 5977/07 by the Hebrew University of Jerusalem vs. Yaakov Cohen, the Labour Party and Schocken Publishing House against the ruling by Y Shapira in T.A. 6306/04 from 17 May 2007.
The case was heard on 15 November 2010 by Deputy President Rivlin, and Justices Jubran and Danziger, and the ruling issued on 20 June 2011.
Posted by Dr Michael Factor 
