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Vicarious And Contributory Copyright Infringement.

I. COPYRIGHT INFRINGEMENT: OVERVIEW

Copyright infringement occurs when a person violates any of the exclusive rights of the copyright owner under 17 U.S.C. § 106, including reproduction, distribution, public performance, or derivative works.

Sometimes, a person or entity may not directly copy but can still be liable indirectly. This is where vicarious and contributory infringement come into play.

II. VICARIOUS COPYRIGHT INFRINGEMENT

1. Definition

Vicarious copyright infringement arises when a person or entity:

Has the right and ability to control the infringing activity, and

Derives a direct financial benefit from the infringement

Key Point: No knowledge of the infringement is required.

Legal Basis

Codified under common law, clarified in U.S. courts via Sony Corp. of America v. Universal City Studios and Gershwin Publishing Corp. v. Columbia Artists Management

2. Key Cases

1. Gershwin Publishing Corp. v. Columbia Artists Management, 443 F.2d 1159 (2d Cir. 1971)

Facts:

Columbia Artists Management organized concerts where copyrighted music was performed.

Columbia did not directly perform the music but organized events and profited from ticket sales.

Issue:

Can an entity be vicariously liable if it controls the activity and profits from infringement, even without performing?

Holding:

Columbia Artists Management was vicariously liable.

Reasoning:

The court held that the right to control plus financial benefit from infringement satisfies vicarious liability.

Impact:

Established the two-prong test: control + financial benefit

Knowledge of infringement is not required

2. Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304 (2d Cir. 1963)

Facts:

H.L. Green, a department store, sold records that were copyrighted without authorization by tenants in their store.

Issue:

Can a landlord or store be vicariously liable for tenants’ infringement?

Holding:

H.L. Green was vicariously liable.

Reasoning:

The store had the right to supervise tenants and profit from record sales.

Liability does not depend on direct involvement.

Impact:

Reinforced that financial benefit + control are sufficient for vicarious liability

3. Fonovisa, Inc. v. Cherry Auction, 76 F.3d 259 (9th Cir. 1996)

Facts:

Flea market owners rented space to vendors selling counterfeit music and videos.

Fonovisa sued for copyright infringement.

Issue:

Can venue owners be vicariously liable for vendors’ infringement?

Holding:

Yes, vicarious liability applies.

Reasoning:

Flea market owners had the ability to control vendors and profited from rental fees.

Impact:

Vicarious liability applies even in marketplaces or venues, not just traditional employers.

III. CONTRIBUTORY COPYRIGHT INFRINGEMENT

1. Definition

Contributory copyright infringement arises when a party:

Has knowledge of the infringing activity, and

Materially contributes or induces the infringement

Key Point: Knowledge is required (unlike vicarious liability).

Legal Basis

Developed in Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984) and later clarified in online context.

2. Key Cases

1. Sony Corp. of America v. Universal City Studios (Betamax Case), 464 U.S. 417 (1984)

Facts:

Sony sold Betamax VCRs, which could record copyrighted TV programs.

Issue:

Can a manufacturer be liable for contributory infringement for a device capable of infringement?

Holding:

No contributory infringement if the device is capable of substantial non-infringing use.

Reasoning:

Knowledge alone is not enough; material contribution must be substantial.

VCRs had legitimate uses, so Sony was protected.

Impact:

Established safe harbor for technology providers when non-infringing uses exist.

2. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007)

Facts:

Google’s image search displayed thumbnails of copyrighted images.

Issue:

Can Google be contributorily liable for making copyrighted images available?

Holding:

Google could potentially be liable if it had knowledge and materially contributed.

Reasoning:

Courts considered whether providing search tools counts as material contribution.

Impact:

Clarified contributory infringement in the digital age.

3. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001)

Facts:

Napster provided a peer-to-peer network for sharing copyrighted music.

Issue:

Is Napster contributorily liable for users’ infringement?

Holding:

Yes, Napster was contributorily liable.

Reasoning:

Napster had actual knowledge of infringement

Its service materially facilitated infringement

Impact:

Key precedent for online service provider liability

4. MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005)

Facts:

Grokster distributed file-sharing software.

Issue:

Can a company be contributorily liable even if its software has lawful uses?

Holding:

Yes, if the company actively induces infringement

Reasoning:

Focus on intent to promote infringement

Distinction between passive distribution (Sony) and active inducement (Grokster)

Impact:

Expanded contributory liability for technology providers who encourage infringement

IV. COMPARISON OF VICARIOUS AND CONTRIBUTORY LIABILITY

V. REMEDIES

Injunctions – Stop ongoing infringement

Damages – Actual, statutory, or profits

Implications for tech companies – Liability depends on knowledge and inducement vs control/profit

VI. SUMMARY OF CASES

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