Now Available At Your Local Flea Market: Safe Harbors
from the do-your-own-policing dept
But now, the same protections afforded to online marketplaces could now be coming to their offline counterparts. Texas judge Lynn Hughes has dismissed the case Sony Discos Inc. v. EJC Family Partnership, where Sony Music sued a flea market operator, Elwin J. Cole, for copyrighted goods being sold at the market. Sony alleged that EJC was guilty of contributory infringement by allowing its sellers to sell copyrighted goods in the market. The judge disagreed, ruling that it was not EJC's responsibility to police the market for Sony (full ruling here - pdf):
Sony does not argue and cannot show that Cole aided or enhanced infringing sales specifically, in a manner distinct from Cole's facilitation of all sales at the flea market.So, perhaps driven by the safe harbors enjoyed by their online counterparts, offline flea markets are no longer to be held responsible for infringing uses of their marketplaces. If infringement happens, then it's reasonable for the owners to go after those specifically responsible -- it's inefficient and unfair to expect a marketplace to do the police work, especially when there are tons of non-infringing sales happening all of the time.
...Cole is not akin to the driver of a get-away car; he is closer to the service station manager who sells the bank-robber gasoline.