THEORIES OF SECONDARY THEORIES OF SECONDARY LIABILITY FOR INFRINGEMENTLIABILITY FOR INFRINGEMENT

Contributory InfringementContributory Infringement (1) With knowledge of direct infringing activity (2) (1) With knowledge of direct infringing activity (2)

induce, cause, or materially contribute to infringing induce, cause, or materially contribute to infringing conduct of anotherconduct of another

Vicarious InfringementVicarious Infringement (1) Direct financial interest in infringing activity, (2) (1) Direct financial interest in infringing activity, (2)

right and ability to supervise the infringing activity right and ability to supervise the infringing activity (cabined by current system architecture)(cabined by current system architecture)

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TYPES OF CONTRIBUTORY TYPES OF CONTRIBUTORY INFRINGEMENTINFRINGEMENT

Intentional Participation Intentional Participation (Dance Hall Cases)(Dance Hall Cases) Ongoing relationship with direct infringer and authorization of Ongoing relationship with direct infringer and authorization of

infringing conductinfringing conduct

Product Sale or Distribution Product Sale or Distribution (Sony)(Sony) Distribution of product that facilitates infringement by others Distribution of product that facilitates infringement by others

unless product is capable of substantial noninfringing usesunless product is capable of substantial noninfringing uses

Inducement Inducement (Grokster)(Grokster) Actively encouraging infringement by others through specific Actively encouraging infringement by others through specific

acts acts

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INDUCEMENT AFTER GROKSERINDUCEMENT AFTER GROKSER Legal TestLegal Test

1.1. Unlawful objectiveUnlawful objective: Intent that copyrights be infringed: Intent that copyrights be infringed

2.2. KnowledgeKnowledge: Actual knowledge of direct infringement: Actual knowledge of direct infringement

3.3. Culpable actsCulpable acts: Clear expression or other affirmative steps : Clear expression or other affirmative steps taken to foster infringementtaken to foster infringement

Product Distribution as Culpable ActProduct Distribution as Culpable Act– Yes if distributor intended and encouraged product to be used to Yes if distributor intended and encouraged product to be used to

infringe (Grokster)infringe (Grokster)

– Yes if distributor could take simple measures to prevent Yes if distributor could take simple measures to prevent infringement yet continues to provide access to infringing works infringement yet continues to provide access to infringing works

though product (Perfect 10)though product (Perfect 10)

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AVOIDING INDUCEMENT AVOIDING INDUCEMENT LIABILITY AFTER GROKSERLIABILITY AFTER GROKSER

STUDY AND IMPLEMENT (IF POSSIBLE) STUDY AND IMPLEMENT (IF POSSIBLE) RESONABLE MEASURES TO PREVENT RESONABLE MEASURES TO PREVENT INFRINGEMENTINFRINGEMENT

IMPLEMENT PROCEDURES TO IMPLEMENT PROCEDURES TO BECOME DCMA SAFE HARBOR BECOME DCMA SAFE HARBOR COMPLIANTCOMPLIANT

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