Shabbat Parashat Shoftim 5777

P'ninat Mishpat: Copyright Infringement in Communal Gift – part II

Case: The defendant (=def), a settlement community, decided to give as a present to its few hundred families, magnetic signs with a certain design and the families’ names on them. Their Director of Culture took a picture of a sign in front of family A’s house to a printing press and asked for a similar design. (She tried to call the designer of that sign, but when she did not succeed, she proceeded). Because she did not like the result, she approached a designer who worked at a child care center belonging to def, and asked her to quickly come up with an alternative. The designer took a design for a sign off a Facebook site for designers; the design had pl’s name and number on the bottom. This was used for signs that were given out and are now on the doors of many of the yishuv’s homes. Pl is suing for: 450 shekels for use of the design and 50,000 shekel penalty for copyright infringement. Def claims that they should be exempt, because, as an entity, they did not do anything wrong. The Director of Culture acted without realizing what she was doing in this regard (she claims to not have noticed the name on the design and assumed it was from a legal source). Pl also asked that the signs be collected because they were done with poor quality, which reflects badly on her.

Ruling: [Last time we saw that def is obligated to pay pl for infringing on her intellectual property rights through the actions of their employees on their behalf.]

Beit din accepts pl’s premise that the low quality of the signs is damaging to her reputation. However, it is not practical to try to collect all of them from a great number of homeowners, who are not a direct party to this case. Instead, beit din requires def to distribute the letter that is an appendage to the ruling, which explains the situation. If pl wants to use some of the award to replace the signs with improved ones, she may do so.

The law allows for payment of up to 100,000 shekels without proof of damage for intellectual property infringement. Par. 56b lists factors that are recommended to impact the amount paid, which we will list and apply to our case. 1) The scope of the infringement (e.g., number of copies) – small, only a few hundred copies. 2) Amount of time infringement went on – a year. 3) Severity of infringement – mixed. It was done intentionally, but it was not done by someone who operates in the same field as the owner of the rights. 4) Level of loss – only 450 shekel, estimated that def would have had to pay pl for rights in the first place. 5) Gain by violator – again, 450 shekels. 6) Nature of violator’s activities – not involved in the field. 7) Level of awareness of violation – aware.

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