Page:The librarian's copyright companion, by James S. Heller, Paul Hellyer, Benjamin J. Keele, 2012.djvu/51

Chapter Three. Liability for Infringement Plaintiffs in an infringement lawsuit are not interested in getting damages from the person who runs the photocopier, of course. They want a judgment against the organization, which, if it has not already declared bankruptcy due to misconduct by its officers or accountants, has the “deep pockets.” This brings us to the issue of the liability of an employer for the acts of its employees.

Whether a library or its parent institution may be responsible for an employee’s infringement depends on the library’s involvement in the infringing activity, or its relationship to the infringer. The institution may be liable under either of two legal theories: vicarious liability (sometimes called respondeat superior) or contributory infringement.

Vicarious liability generally means that an employer will be liable for harmful acts done by employees who acted within the scope of their employment. A library may be liable for the acts of its employees if it had the right and ability to supervise the employee, and also derived a financial benefit from exploiting the copyrighted work. Knowledge of the infringing activity is not necessary. The financial benefit is found if the institution is getting something for free that it should have paid for, or even when there is an indirect benefit.