Saint Louis University law school professor Yvette Joy Liebesman has written Downstream Copyright Infringers. Here is her description of the problem she has identified, and the solution she proposes:
The advent of on-line music sales has been a boon to the recording industry as well as for musicians and the general public. Previously unknown artists have found new avenues to showcase their work, and consumers have easy access to an enormous variety of musical genres. Yet an unintended consequence of the ability to sell songs through internet downloads is a novel, and until now, unnoticed way to infringe on copyrights - which, unless remedied, could lead to new classes of defendants never contemplated or desired to be ensnared in the Copyright Act’s protections for artists, musicians and authors. Unlike a brick-and-mortar transaction, the act of purchasing a song on the web requires that the purchaser “download” a digital file of the song - that is, make a copy of the song that is located on the vendor’s website, and transfer that copy to the consumer’s computer. In this on-line transaction, consumers are availing themselves of one of the rights of the copyright owner, namely the reproduction right. Of course, by making songs available for purchase via download, the copyright owner is authorizing such a reproduction. But if the downloaded song is in fact infringing on another’s musical composition copyright rights, this new method of purchasing music turns ordinary consumers into unintentional infringers. When a consumer downloads a song from a legitimate music store such as iTunes, she tacitly assumes that the song is not infringing on the musical work of another. If, however, the song is infringing on the copyright of another musical composition, then the consumer has made an unauthorized copy and infringes on the infringed-upon musician's reproduction right. It is only a matter of time before members of the recording industry grab onto this form of infringement and demand compensation from unsuspecting consumers. Copyright infringement is a tort of strict liability and courts would thus be constrained in their ability to give relief to consumers who infringe in this manner. This article argues that rather than wait for litigation to commence, Congress should consider legislating an exception for consumer downstream infringement that was neither contemplated nor desired when the Copyright Act was passed.